Helina S. Dayries, Assistant U.S. Attorney, Jennifer McDaniel Kleinpeter, Esq., Assistant U.S. Attorney, Catherine M. Maraist, Assistant U.S. Attorney, Frederick Angelo Menner, Jr., Assistant U.S. Attorney, Shubhra Shivpuri; Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Baton Rouge, LA, for Plaintiff-Appellee.
Rebecca Louise Hudsmith, Esq., Federal Public Defender, Federal Public Defender's Office, Lafayette, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Louisiana.
Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
REAVLEY, Circuit Judge:
Tommy Walters appeals following his conviction by a jury of conspiracy and substantive drug offenses, as well as unlawful use of communications facilities. He challenges the participation of alternate jurors during the jury deliberations. Because Walters waived his right to appeal in a sentencing agreement, however, we DISMISS the appeal.
Walters was charged in a multi-count, multi-defendant indictment with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, and three counts of unlawful use of communication facilities. The Government filed a notice of sentencing enhancement pursuant to 21 U.S.C. § 851(a) because Walters had two prior felony drug convictions. The enhancement exposed Walters to a mandatory sentence of life imprisonment in the instant case. Following the jury's verdict of guilty, Walters filed motions for a new trial and to arrest judgment, arguing that the district court had improperly allowed two alternate jurors to participate in the jury deliberations.
Walters subsequently entered into a sentencing agreement with the Government in which he agreed to withdraw his pending motions and waive his right to appeal the conviction and sentence in exchange for the Government's dismissal of the second statutory sentencing enhancement. As a result of this agreement, Walters faced a mandatory minimum sentence of twenty years in prison. Walters and his counsel both signed the agreement, and at sentencing Walters re-affirmed his intent to enter into the agreement after it was read aloud by the Government's attorney. The district court sentenced Walters to a total term of 240 months in prison.
On appeal, Walters seeks to argue that the district court plainly erred by allowing two alternate jurors to take part in the jury deliberations. The Government argues that the appeal is barred by the appeal waiver in the sentencing agreement. We have not previously addressed the enforceability of appeal waivers contained
in sentencing agreements, although we have routinely enforced voluntary and informed appeal waivers contained in plea agreements. See, e.g., United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). Our sister circuits have uniformly held that waivers in sentencing agreements are enforceable just as waivers in plea agreements are enforceable. See, e.g., United States v. Cheney, 571 F.3d 764, 766 (8th Cir.2009); United States v. Trejo-Nolasquez, 346 Fed.Appx. 374, 375-77 (5th Cir.2009); United States v. Cano, 190 Fed.Appx. 34, 36-37 (2d Cir.2006); United States v. Stevens, 66 F.3d 431, 437 (2d Cir.1995). We agree with our sister circuits.
The validity of an appeal waiver is an issue of law that we review de novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir.2005). We will enforce a defendant's waiver of appellate rights if the waiver was knowing and voluntary, and if the waiver applies to the ...