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.
In 1983, Higgins was convicted of crimes against nature and carnal knowledge of a juvenile under Louisiana law for engaging in fellatio and sexual intercourse with his thirteen-year-old step-niece. In 2009, federal agents discovered, on Higgins's computer, approximately 10,000 images and 2,500 videos depicting the sexual exploitation of children ranging in age from infants to fifteen years. Higgins pleaded guilty to one count of receipt of materials involving sexual exploitation of minors and was sentenced to fifteen years of imprisonment 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 maximum."
Additionally, the plea agreement acknowledged Higgins's Louisiana convictions and that they constitute convictions of "abusive sexual conduct involving a minor or ward" for purposes of 18 U.S.C. § 2252. As a result, the minimum sentence would be fifteen years. The district court specifically questioned Higgins regarding that section of the agreement and its consequences on sentencing.
At the oral pronouncement, the court added several special conditions of SR, including "the drug abuse treatment and/or testing condition" and "the search and seizure condition." Although the court did not discuss those conditions in detail during oral sentencing, the written pronouncement included additional language requiring Higgins (1) to contribute to the cost of the drug testing
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."
An appeal waiver bars an appeal if the waiver (1) was knowing and voluntary and (2) applies to the circumstances at hand, based on the plain language of the agreement. United States v. Bond, 414 F.3d 542, 544 (5th Cir.2005). Under that test, Higgins has waived appeal.
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.
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 involving 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 Higgins's fifteen-year term is less than both maximum sentences, his claim regarding the fifteen-year mandatory minimum falls within the waiver provision and is waived on appeal.
Next, we address whether the plain language of the waiver applies to Higgins's appeal regarding the conditions of SR.
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 sentence.
Higgins further contends, however, that even if conditions of SR were included within the "sentence," only those conditions in the oral pronouncement can be considered his "sentence" for purposes of waiver. Therefore, his argument continues, any appeal regarding potential discrepancies in the written 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 support, Higgins quotes United States v. Shaw, 920 F.2d 1225, 1231 (5th Cir. 1991): "[W]here there is any variation between the oral and written pronouncements 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 sentence. Id. Though it is true that the oral pronouncement prevails where a conflict is found, this settled law regarding the merits of the appeal does not speak to whether a conflict between the two sentences constitutes an appeal of the sentence for purposes of waiver.
Additionally, the nature of the appeal for conflict between the two sentences 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 defendant was not present.
Because Higgins's challenge to the conditions of SR in the written judgment 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 addressing the statutory maximum in the imprisonment context we need consider only 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:
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 arguments fall within the appeal waiver and are waived on appeal.
Because all of Higgins's arguments on appeal have been waived under his plea agreement, the appeal is DISMISSED.
The Defendant: Yeah, I saw it.