Case: 17-51101      Document: 00514779177         Page: 1    Date Filed: 01/02/2019




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

                                                                                 FILED
                                    No. 17-51101                           January 2, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARCUS DESHAW HICKS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-292-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Marcus Deshaw Hicks appeals the 168-month, within-guidelines
sentence he received upon pleading guilty to conspiracy to distribute and to
possess with the intent to distribute 50 grams of cocaine base. Hicks asserts
that the district court erred by denying him a minor-role adjustment pursuant
to U.S.S.G. § 3B1.2. The Government asks us to enforce the waiver, contained




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-51101    Document: 00514779177     Page: 2   Date Filed: 01/02/2019


                                 No. 17-51101

in Hicks’s plea agreement, of his “right to appeal any aspect of [his] conviction
and sentence.”
      We review de novo whether the appeal waiver bars Hicks’s appeal. See
United States v. Keele, 

, 754 (5th Cir. 2014). The record reflects
that Hicks’s waiver of his appeal rights was “a voluntary, knowing, and
intelligent act.” United States v. Guerra, 

, 995 (5th Cir. 1996).
Furthermore, the waiver applies to the circumstances at issue in this case, and
the sole exceptions to the waiver are inapplicable to the claim he raises on
appeal. See United States v. Bond, 

, 544 (5th Cir. 2002). Finally,
it is of no moment that Hicks’s appeal was filed after remand and resentencing.
See United States v. Capaldi, 

, 308 (5th Cir. 1998).
      Accordingly, Hicks’s appeal is DISMISSED. See United States v. Story,

, 230 n.5 (5th Cir. 2006). Further, Hicks’s counsel is CAUTIONED
that pursuing an appeal contrary to a valid waiver and without responding to
the Government’s invocation of the waiver is a needless waste of judicial
resources and could result in sanctions. See United States v. Gaitan, 

, 223-24 (5th Cir. 1999).




                                       2