United States v. Gibson

No. 99-20837
-1-
* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20837
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OTIS GIBSON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-48-1
--------------------
April 14, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Otis Gibson pleaded guilty to being a felon in possession of
a firearm and was sentenced to 120 months’ imprisonment. Gibson
seeks to appeal his sentence on the grounds that the district
court erred in enhancing his sentence for assaulting a law
enforcement officer and for possession of three firearms. He
contends that the record reflects that he did not knowingly and
voluntarily waive his right to appeal his sentence.
Gibson and the Federal Public Defender representing him
signed attestations attached to the plea agreement in which they

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No. 99-20837
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asserted that Gibson had read the plea agreement, had carefully
reviewed “every part” of the agreement with his attorney, and
that he understood it and voluntarily agreed to it. At the Rule
11 hearing, Gibson swore that he read and understood the plea
agreement and that he had willingly signed it.
When the record clearly shows that the defendant read and
understood the plea agreement and that he raised no question
regarding the waiver-of-appeal provision, the plea agreement is
upheld. United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir.
1994). The district court asked Gibson if he had read and if he
understood the plea agreement. Gibson swore in the affirmative.
There is nothing in the record to indicate that Gibson did not
understand or was confused by the waiver-of-appeal provision. To
the contrary, Gibson’s and his counsel’s attestations indicate
that he reviewed and understood “every part” of the plea
agreement. Gibson and counsel can hardly be heard to argue to
the contrary now, and we deem such argument to be frivolous. We
caution the Federal Public Defender that we do not look kindly
upon such frivolous appeals challenging the validity of a waiver-
of-appeal provision after the Federal Public Defender has
negotiated the plea agreement and has then represented to the
district court that the defendant has read and understood every
part of that agreement.
We hold that Gibson waived his right to appeal his sentence
in his plea agreement, and we DISMISS THIS APPEAL AS FRIVOLOUS.
Portillo, 18 F.3d at 292-93.

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