Case: 19-10619      Document: 00515351531         Page: 1    Date Filed: 03/19/2020




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

                                                                                FILED
                                    No. 19-10619                          March 19, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LYDIAH BREAUX,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-172-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Lydiah Breaux appeals her guilty-plea conviction of theft of public funds,
18 U.S.C. §§ 2, 641, and sentence of 30 months in prison. She contends that
she was entitled to a sentence without imprisonment because of her unusual
role as the caregiver to a severely autistic child. According to Breaux, the
district court erred in adding two levels to her offense level in calculating the
guidelines sentencing range because the offense involved more than 10 victims


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10619    Document: 00515351531     Page: 2   Date Filed: 03/19/2020


                                 No. 19-10619

and two further levels because a substantial part of the offense occurred
outside of the United States. Further, Breaux argues that her trial counsel
rendered ineffective assistance with regard to the two enhancements.
      The Government has moved to dismiss the appeal as barred by the
appeal waiver in Breaux’s plea agreement. We review de novo. See United
States v. Keele, 

, 754 (5th Cir. 2014). Although Breaux contends
that the appeal waiver was “tainted” by ineffective assistance of counsel, the
record indicates that she knowingly and voluntarily entered into the plea
agreement with the appeal waiver. See United States v. Higgins, 

,
736 (5th Cir. 2014); 

. Based on this record, Breaux is
bound by the obligations of her plea agreement. See 

.
The district court sentenced Breaux below the statutory maximum, and her
challenges to the calculation of her guidelines range are not based on
arithmetic error. Therefore, Breaux’s appeal waiver bars her challenges to the
enhancements and the inclusion of a term of imprisonment in her sentence.
See United States v. Bond, 

, 545-46 (5th Cir. 2005).
      Breaux correctly notes that her appeal waiver does not bar her claims
that counsel rendered ineffective assistance by failing to object to the offense
level enhancements for the number of victims and the location of a substantial
part of the criminal conduct. However, she did not present these claims to the
district court, and the record may not “contain[] all of the evidence that could
be developed with respect to [the] claim[s].” United States v. Rosalez-Orozco,

, 199 (5th Cir. 1993). We, therefore, decline to consider Breaux’s
claims of ineffective assistance of counsel without prejudice to collateral
review.
      For these reasons, the motion to dismiss is GRANTED, and this appeal
is DISMISSED in part as barred by the appeal waiver as to Breaux’s challenges



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                                 No. 19-10619

to the application of the offense-level enhancements and her sentence of
imprisonment and DISMISSED in part without prejudice to collateral review
as to Breaux’s claims of ineffective assistance of counsel.




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