United States v. Hayes

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-11167 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDDIE EARL HAYES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:00-CR-47-1-C -------------------- April 2, 2001

Before SMITH, BENAVIDES, and DENNIS Circuit Judges.

PER CURIAM:*

Freddie Earl Hayes seeks to appeal his conviction for

possession of a firearm by a convicted felon and his sentence of

105 months’ imprisonment. He argues that the felon-in-possession

statute, 18 U.S.C. § 922(g)(1), is unconstitutional. The

Government argues that Hayes has waived his right to raise this

issue on appeal. Hayes has not filed a reply brief addressing

the waiver-of-appeal issue.

A defendant may, as part of a valid plea agreement, waive

his statutory right to appeal. United States v. Melancon, 972

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-11167 -2-

F.2d 566, 567-68 (5th Cir. 1992); United States v. Henderson, 72

F.3d 463, 464-65 (5th Cir. 1995). The record reflects that Hayes

knowingly and voluntarily waived his right to appeal, with

limited exceptions, in his plea agreement. See United States v.

Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994). Thus, we decline

to address Hayes’ arguments pertaining to the purported

unconstitutionality of 18 U.S.C. § 922(g).

Hayes also argues that the district court erred in

increasing his base offense level by four pursuant to U.S.S.G.

§ 2K2.1(b)(5). Hayes’ arguments are foreclosed by our decision

in United States v. Condren, 18 F.3d 1190, 1191 (5th Cir. 1994).

AFFIRMED.