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United States v. Ellis, 21-60222 (2021)

Court: Court of Appeals for the Fifth Circuit Number: 21-60222 Visitors: 14
Filed: Oct. 19, 2021
Latest Update: Oct. 20, 2021
Case: 21-60222       Document: 00516060718             Page: 1     Date Filed: 10/19/2021

              United States Court of Appeals
                   for the Fifth Circuit
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                     No. 21-60222
                                                                            October 19, 2021
                                   Summary Calendar
                                                                              Lyle W. Cayce
   United States of America,



   Kevin Vincent Ellis,


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                                 No. 1:20-CR-98-1

   Before Smith, Stewart, and Graves, Circuit Judges.
   Per Curiam:*

          Kevin Ellis appeals the 90-month within-guidelines sentence imposed
   for possession of a firearm as a felon. He contends that his offense level was
   erroneously enhanced by four for his possessing the firearm in connection
   with another felony offense. Seeking to enforce the waiver of appeal in Ellis’s

              Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
   ion should not be published and is not precedent except under the limited circumstances
   set forth in 5th Circuit Rule 47.5.4.
Case: 21-60222      Document: 00516060718           Page: 2    Date Filed: 10/19/2021

                                     No. 21-60222

   plea agreement, the government moves to dismiss the appeal or, in the alter-
   native, for summary affirmance.
          Whether an appeal waiver bars an appeal is a question this court
   reviews de novo. United States v. Keele, 
755 F.3d 752
, 754 (5th Cir. 2014). The
   question turns on “a two-step inquiry: (1) whether the waiver was knowing
   and voluntary and (2) whether the waiver 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).
          The record reflects that both those conditions are met here. Ellis
   maintains that the court should apply a miscarriage-of-justice exception and
   disregard the waiver. “Though some other circuits recognize such an excep-
   tion, we have declined explicitly either to adopt or to reject it.” United States
   v. Barnes, 
953 F.3d 383
, 389 (5th Cir.), cert. denied, 
141 S. Ct. 438
 (2020). We
   do not do so now.
          Accordingly, the motion to dismiss is GRANTED, the alternative
   motion for summary affirmance is DENIED, and the appeal is

Source:  CourtListener

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