United States v. Gibson

Opinion

No. 99-20837 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20837 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OTIS GIBSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-48-1 -------------------- April 14, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Otis Gibson pleaded guilty to being a felon in possession of

a firearm and was sentenced to 120 months’ imprisonment. Gibson

seeks to appeal his sentence on the grounds that the district

court erred in enhancing his sentence for assaulting a law

enforcement officer and for possession of three firearms. He

contends that the record reflects that he did not knowingly and

voluntarily waive his right to appeal his sentence.

Gibson and the Federal Public Defender representing him

signed attestations attached to the plea agreement in which they

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-20837 -2-

asserted that Gibson had read the plea agreement, had carefully

reviewed “every part” of the agreement with his attorney, and

that he understood it and voluntarily agreed to it. At the Rule

11 hearing, Gibson swore that he read and understood the plea

agreement and that he had willingly signed it.

When the record clearly shows that the defendant read and

understood the plea agreement and that he raised no question

regarding the waiver-of-appeal provision, the plea agreement is

upheld. United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir.

1994). The district court asked Gibson if he had read and if he

understood the plea agreement. Gibson swore in the affirmative.

There is nothing in the record to indicate that Gibson did not

understand or was confused by the waiver-of-appeal provision. To

the contrary, Gibson’s and his counsel’s attestations indicate

that he reviewed and understood “every part” of the plea

agreement. Gibson and counsel can hardly be heard to argue to

the contrary now, and we deem such argument to be frivolous. We

caution the Federal Public Defender that we do not look kindly

upon such frivolous appeals challenging the validity of a waiver-

of-appeal provision after the Federal Public Defender has

negotiated the plea agreement and has then represented to the

district court that the defendant has read and understood every

part of that agreement.

We hold that Gibson waived his right to appeal his sentence

in his plea agreement, and we DISMISS THIS APPEAL AS FRIVOLOUS.

Portillo, 18 F.3d at 292-93.