Case: 12-30818    Document: 00512496730     Page: 1   Date Filed: 01/10/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                No. 12-30818                       January 10, 2014
                                                                     Lyle W. Cayce
                                                                          Clerk


UNITED STATES OF AMERICA,

                                           Plaintiff–Appellee,

versus

RICHARD A. HIGGINS,

                                           Defendant–Appellant.




                Appeal from the United States District Court
                   for the Eastern District of Louisiana




Before STEWART, Chief Judge, JOLLY and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Richard Higgins pleaded guilty of receipt of child pornography and
appeals his sentence. Appeal has been waived, so the appeal is dismissed.


                                      I.
      In 1983, Higgins was convicted of crimes against nature and carnal
knowledge of a juvenile under Louisiana law for engaging in fellatio and sexual
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                                       No. 12-30818
intercourse with his thirteen-year-old step-niece. In 2009, federal agents dis-
covered, on Higgins’s computer, approximately 10,000 images and 2,500 videos
depicting the sexual exploitation of children ranging in age from infants to fif-
teen years. Higgins pleaded guilty to one count of receipt of materials involving
sexual exploitation of minors and was sentenced to fifteen years of impris-
onment and five years of supervised release (“SR”).
       At his rearraignment, Higgins entered into a plea agreement that
included a general waiver of the right to appeal his sentence, reserving only
the right to appeal “any punishment imposed in excess of the statutory maxi-
mum.” 1      Although the district court did not question Higgins specifically
regarding the waiver, it asked him about his reading and understanding of the
plea agreement; it directed the prosecutor to show Higgins the agreement once
again, to which Higgins responded that he had read it. The court then asked
whether there were any provisions that Higgins did not understand, to which
Higgins responded “No.” 2




       1 “Except as otherwise provided in this paragraph, the defendant hereby expressly
waives the right to appeal his sentence on any ground, including but not limited to any appeal
right conferred by Title 18, United States Code, Section 3742 on the defendant, and the defen-
dant further agrees not to contest his sentence in any post-conviction proceeding, including
but not limited to a proceeding under Title 28, United States Code, Section 2255. The defen-
dant, however, reserves the right to appeal any punishment imposed in excess of the statu-
tory minimum.”
       2   “The Court:      Mr. [Prosecutor], would you show Mr. Higgins the plea
                            agreement letter. I just need you to take a look at this, Mr. Hig-
                            ins, and let me know if you have seen it before.
       The Defendant:       Yeah, I saw it.
       The Court:           Is there anything in that document you don’t understand?
       The Defendant:       No.
       The Court:           Does it reflect the agreement you have with the government with
                            respect to these charges?
       The Defendant:       Yes.
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                                       No. 12-30818
      Additionally, the plea agreement acknowledged Higgins’s Louisiana con-
victions and that they constitute convictions of “abusive sexual conduct involv-
ing a minor or ward” for purposes of 18 U.S.C. § 2252. As a result, the mini-
mum sentence would be fifteen years. The district court specifically questioned
Higgins regarding that section of the agreement and its consequences on sen-
tencing. 3 In response, Higgins repeatedly asserted that he did not want out of
jail and wished to sign the plea agreement. 4
      At the oral pronouncement, the court added several special conditions of



      The Court:             Is it your signature on the last page?
      The Defendant:         Yes.”
      3   “The Court:         Also, the government would have to prove that you were previ-
                              ously convicted of a crime relating to abusive sexual conduct
                              involving a minor in order for you to receive the enhancement.
                              Do you understand that?
      The Defendant:         Yes, I guess.
      The Court:             Do you want to talk to Mr. Montgomery about that for a minute?
      (Discussion between the defendant and his counsel off the record.)
      The Defendant:         Yes, Your Honor.
      The Court:             Do you understand that there is––because of the previous con-
                             viction, there is an enhancement of the sentence. That’s why we
                             had talked about the mandatory minimum that we talked about.
                             I just need to know if you understand that? [sic]
      The Defendant:         I understand it.”
      4   “The Defendant:    Your Honor, I don’t want any supervised release. I want to go to
                             jail until I die.
      The Court:             Okay.
      The Defendant:         You know, I have talked––that’s why I am here pleading guilty.
      ...
      The Defendant:         I don’t want out of jail. If you gave me five years, you know,
                             hypothetically, you know, what then? I’m 71 years old, I have
                             got to try to figure out what I’m going to do the rest of my life? I
                             don’t want out. So if you give me 100 years or life, I will take it,
                             you know. That’s the only reason I am signing all these papers,
                             I am guilty, I did what I said that I did and I don’t want out.”
                                                 3
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                                       No. 12-30818
SR, including “the drug abuse treatment and/or testing condition” and “the
search and seizure condition.” Although the court did not discuss those condi-
tions in detail during oral sentencing, the written pronouncement included
additional language requiring Higgins (1) to contribute to the cost of the drug
testing 5 and (2) to warn any other residents with whom he lived that they may
be subject to search pursuant to his conditions of SR. 6
       On appeal, Higgins argues that the district court erred in finding that
his prior convictions constituted “abusive sexual relations with a minor or
ward” under § 2252, raising the minimum statutory imprisonment from five to
fifteen years. Higgins also maintains that the written pronouncement conflicts
with the oral pronouncement by impermissively broadening the conditions of
SR. Additionally, Higgins contends that the appeal waiver is invalid because
it was not made knowingly or voluntarily and, alternatively, that it does not
apply to his argument regarding the conflict in sentences because that appeal
does not concern his “sentence.”


                                              II.
       An appeal waiver bars an appeal if the waiver (1) was knowing and vol-
untary and (2) applies to the circumstances at hand, based on the plain lan-
guage of the agreement. United States v. Bond, 

, 544 (5th Cir.



       5“The defendant shall participate in a program of testing and/or treatment for drug
abuse, as directed by the probation officer, until such time as the defendant is released from
the program by the probation officer. The defendant shall contribute to the cost of such treat-
ment to the extent that the defendant is deemed capable by the probation officer.” (emphasis
added).
       6 “The defendant shall submit his person, residence, office or vehicle to a search, con-
ducted by a United States Probation Officer at a reasonable time and in a reasonable manner,
based upon reasonable suspicion of contraband or evidence of a violation of a condition of
release; the defendant shall warn any other residents that the premises may be subject to
searches pursuant to this condition.” (emphasis added).
                                              4
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                                       No. 12-30818
2005). Under that test, Higgins has waived appeal.


                                              A.
       For a waiver of appeal to be knowing and voluntary, a defendant must
know that he had a right to appeal his sentence, that he was giving up that
right, and the consequences of giving it up. 7 We will, however, enforce a waiver
on appeal regardless of whether the district court addressed it directly where
the record indicates the defendant has read and understood his plea agreement
and has raised no questions about the waiver. 8 The district court specifically
asked Higgins whether he had read and understood the plea agreement and
whether the signature was his. Higgins answered affirmatively and asked no
questions. Because Higgins knowingly and voluntarily waived his right to
appeal, he is bound by the obligations of the plea agreement.




       7See United States v. Portillo, 

, 292 (5th Cir. 1994); United States v. Baty,

, 979 (5th Cir. 1992).
       8 See United States v. McKinney, 

, 746 (5th Cir. 2005) (“Because McKin-
ney indicated that he had read and understood the plea agreement, which includes an expli-
cit, unambiguous waiver of appeal, the waiver was both knowing and voluntary.”); 

(“Because [the defendant] indicated that he read and understood the agreement,
which includes an explicit, unambiguous waiver of appeal, the waiver was both knowing and
voluntary.”); 

–93 (“We hold [ ] that when the record of the Rule 11
hearing clearly indicates that a defendant has read and understands his plea agreement, and
that he raised no question regarding a waiver-of-appeal provision, the defendant will be held
to the bargain to which he agreed, regardless of whether the court specifically admonished
him concerning the waiver of appeal.”); United States v. Wheaton, 465 F. App’x 321, 323 (5th
Cir.) (per curiam) (“Wheaten’s response . . . indicates that he had read the plea agreement.
At no time did Wheaten indicate . . . that he did not understand any of the terms set forth in
the agreement. Moreover, Wheaten signed the agreement in which he attested that he had
read it and understood its terms.”), cert. denied, 

(2012); cf. 

–79 (holding that inadequate explanation of waiver-of-appeal provision specifically ques-
tioned by defendant rendered the waiver invalid); United States v. Robinson, 

,
518 (5th Cir. 1999) (“It is clear from the plea colloquy that the district court did not ask
Robinson whether he had read the written plea agreement and understood it.”).
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                                      No. 12-30818
                                            B.
       First, we must address whether the plain language of the waiver applies
to Higgins’s appeal regarding the district court’s ruling that a fifteen-year
mandatory-minimum term of imprisonment applied based on Higgins’s prior
convictions. In his appeal waiver, Higgins reserved only “the right to appeal
any punishment imposed in excess of the statutory maximum.” The statutory
maximum under the plea agreement—in which Higgins acknowledged a prior
conviction under Louisiana law relating to the “abusive sexual conduct involve-
ing a minor or ward”—was forty years; the maximum in the absence of such a
qualifying conviction was twenty years. 18 U.S.C. § 2252(b)(1). Because Hig-
gins’s fifteen-year term is less than both maximum sentences, his claim regard-
ing the fifteen-year mandatory minimum falls within the waiver provision and
is waived on appeal.


                                            C.
       Next, we address whether the plain language of the waiver applies to
Higgins’s appeal regarding the conditions of SR. 9 Higgins argues that the
waiver does not apply to his contention that the written judgment conflicts
with the oral pronouncement of sentence because the appeal waiver extends
only to Higgins’s actual “sentence” 10 and that only the oral pronouncement of
sentence should be considered the “sentence” for purposes of the appeal waiver.


       9Although Higgins argues that the government has failed to object to his appeal
regarding the conditions of SR on appeal and that, as a result, they have waived the appeal
waiver, United States v. Story, 

, 231 (5th Cir. 2006), we do not agree. The gov-
ernment has adequately invoked the waiver on appeal.
       10 “[T]he defendant hereby expressly waives the right to appeal his sentence on any
ground, including but not limited to any appeal right conferred by Title 18, United States
Code, Section 3742 on the defendant, and the defendant further agrees not to contest his
sentence in any post-conviction proceeding, including but not limited to a proceeding under
Title 28, United States Code, Section 2255.” (emphasis added).
                                             6
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                                        No. 12-30818
We disagree: The waiver applies.
       Although the waiver provision does not explicitly include the terms of
SR, this court—as well as Congress—has deemed SR to be a part of the sen-
tence. 11 In fact, 18 U.S.C. § 3742—under which Higgins claims appellate
jurisdiction—also includes conditions of SR as a part of the sentence. 12 As a
result, the term “sentence” unambiguously includes SR and its conditions as a
matter of law.
       Higgins further contends, however, that even if conditions of SR were
included within the “sentence,” only those conditions in the oral pronounce-
ment can be considered his “sentence” for purposes of waiver. Therefore, his
argument continues, any appeal regarding potential discrepancies in the writ-
ten pronouncement is not an appeal of the sentence but is instead an attempt
to bring the judgment in line with the actual, oral sentence. As his lone sup-
port, Higgins quotes United States v. Shaw, 

, 1231 (5th Cir.
1991): “[W]here there is any variation between the oral and written pro-
nouncements of sentence, the oral sentence prevails.”
       This argument is not convincing because Shaw concerned the merits of
an appeal regarding conflict between oral and written pronouncements of sen-
tence. 

is true that the oral pronouncement prevails where a
conflict is found, this settled law regarding the merits of the appeal does not



       11See United States v. Benbrook, 

, 341 n.10 (5th Cir. 1997); 18 U.S.C.
§ 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a
misdemeanor, may include as a part of the sentence a requirement that the defendant be
placed on a term of [SR] after imprisonment.” (emphasis added)).
       12“A defendant may file a notice of appeal in the district court for review of an other-
wise final sentence if the sentence . . . is greater than the sentence specified in the applicable
guideline range to the extent that the sentence includes a greater fine or term of imprison-
ment, probation, or [SR] than the maximum established in the guideline range, or includes a
more limiting condition of probation or [SR] under section 3563(b)(6) or (b)(11) than the max-
imum established in the guideline range.” 18 U.S.C. § 3742(a) (emphasis added).
                                                7
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                                        No. 12-30818
speak to whether a conflict between the two sentences constitutes an appeal of
the sentence for purposes of waiver. 13 In other words, the fact that the oral
pronouncement prevails when there is variation does not mean that the writ-
ten pronouncement is not also the “sentence” for purposes of appeal.
       Additionally, the nature of the appeal for conflict between the two sen-
tences suggests that such an appeal is an appeal of the sentence. The very
concern that there should be no conflict between the two sentences is largely
based on problems endemic to a conflicting sentence and the constitutional
issues inherent to a materially different second sentence for which the defen-
dant was not present. 14 Although when in conflict one necessarily must control
—and we have decided that it must be the oral sentence—that does not change
the fact that they are both considered the sentence and that they may differ in
content if they do not conflict but one merely addresses ambiguities in the
other. 15 Therefore, an appeal regarding a potential conflict between the two
sentences is an appeal of a sentence under the appeal waiver.
       Because Higgins’s challenge to the conditions of SR in the written judg-
ment is an appeal of his sentence under 18 U.S.C. § 3742, it is covered by the
waiver of appeal unless it constitutes a “punishment imposed in excess of the
statutory maximum” as provided by the appeal waiver. Although in address-
ing the statutory maximum in the imprisonment context we need consider only



       13 The main reason that the oral pronouncement of sentence prevails over the written
in situations of conflict is because the defendant has a constitutional right to be present at
sentencing, and defendants are often not present for the written pronouncement. See United
States v. Torres-Aguilar, 

, 935–36 (5th Cir. 2003) (per curiam); United States v.
Martinez, 

, 942 (5th Cir. 2001) (per curiam).
       14   See 

–36; 

.
       15 See United States v. Warden, 

, 364–65 (5th Cir. 2002) (holding that
differences between two sentences were mere ambiguity consistent with the intent of the
court); 

(“If, however, there is merely an ambiguity between the two
sentences, the entire record must be examined to determine the district court’s true intent.”).
                                               8
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                                      No. 12-30818
the length of time authorized by statute, an appeal regarding the conditions of
SR must be reviewed under 18 U.S.C. § 3583. The statutory limitations to
conditions of SR under § 3583 are as follows:
       The court may order, as a further condition of supervised release,
       to the extent that such condition—

       (1) is reasonably related to the factors set forth in section
       3553(a)(1), (a)(2) (B), (a)(2)(C), and (a)(2)(D);

       (2) involves no greater deprivation of liberty than is reasonably
       necessary for the purposes set forth in section 3553(a)(2)(B),
       (a)(2)(C), and (a)(2)(D); and

       (3) is consistent with any pertinent policy statement issues by the
       Sentencing Commission pursuant to 28 U.S.C. 994(a); any condi-
       tion set forth as a discretionary condition of probation in section
       3563(b) and any other condition it considers to be appropriate.
18 U.S.C. § 3583(d). Because Higgins puts forth no argument that the conflict
in sentencing violates these statutory limitations in a way that constitutes a
punishment in excess of the statutory maximum, his conditions-of-SR argu-
ments fall within the appeal waiver and are waived on appeal. 16
       Because all of Higgins’s arguments on appeal have been waived under
his plea agreement, the appeal is DISMISSED.




       16 See United States v. McDaniel, No. 13-10397, 

, at *1 (5th Cir.
Nov. 8, 2013) (per curiam) (unpublished) (holding that appeal waiver applied where defen-
dant challenged conditions of SR because of perceived conflict between oral and written pro-
nouncements). Because Higgins does not argue that this conflict is merely a clerical error
that should be corrected, there is no need to determine whether the appeal waiver applies to
such corrections under Federal Rules of Criminal Procedure 36. See United States v. Rosales,
448 Fed. App’x 466, 466−67 (5th Cir. 2011) (per curiam) (remanding for correction of clerical
error in written judgment notwithstanding enforceable appeal waiver).
                                             9