Case: 16-50475       Document: 00513874442         Page: 1     Date Filed: 02/14/2017




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

                                     No. 16-50475                                      FILED
                                   Summary Calendar                             February 14, 2017
                                                                                  Lyle W. Cayce
                                                                                       Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CARL JOSEPH CAPPEL,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 1:15-CR-155-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Carl Joseph Cappel appeals the sentences imposed for his convictions of
wire fraud and aggravated identity theft, in violation of 18 U.S.C. §§ 1343,
1028A. In doing so, he challenges the special condition of supervised release
requiring he take all medication as directed by a medical doctor or psychiatrist.
He contends the condition, while in the written judgment, conflicts with the
oral pronouncement of sentence.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 16-50475

      In his plea agreement, Cappel waived the right to appeal his conviction
and sentence “on any ground, including . . . any challenges to the . . . term of
supervision and conditions thereof”. (He reserved only the right to appeal a
sentence greater than the maximum statutory allowance; that reservation was
not triggered). The Government seeks to enforce the appeal waiver.
      The validity of an appeal waiver is reviewed de novo. United States v.
Baymon, 

, 727 (5th Cir. 2002). “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. Higgins, 

, 736 (5th Cir. 2014) (citing United States v.
Bond, 

, 544 (5th Cir. 2005)). “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.” 

.
      At Cappel’s rearraignment, the court reviewed the terms of the appeal
waiver, and Cappel affirmed he understood. His waiver was knowing and
voluntary. See 

applies to the circumstances at hand, given the
waiver provision explicitly includes the conditions of supervised release, and
this court has deemed supervised release and its conditions to be part of the
sentence. See 

      Cappel contends the written judgment contains a special condition of
supervised release requiring him to take all medication as prescribed by a
medical doctor or psychiatrist, yet the court did not pronounce this condition
at sentencing.   As a result of this conflict, Cappel maintains the written
judgment should be amended to remove this special condition or, at minimum,
amended to conform to the condition pronounced at sentencing. Our court has
held, however, that an appeal waiver bars a challenge to a disparity between



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                                No. 16-50475

an oral sentence and the subsequent written judgment. See 

Cappel’s condition-of-supervised-release contention is covered by the appeal
waiver and, therefore, is waived for appeal. See