United States v. Brady

*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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-50009
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR EARL BRADY, JR.,
Defendant-Appellant.
__________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-98-CR-96-ALL
__________________________________________
March 16, 2000
Before POLITZ, WIENER, and PARKER, Circuit Judges
PER CURIAM:*
Oscar Earl Brady, Jr., appeals the sentence following his entry of a plea of guilty
to a charge of possession with intent to distribute cocaine base. The Government
moves to supplement the record.
Brady contends that his attorney provided ineffective assistance by advising him,
prior to rearraignment, that the Sentencing Guidelines required two convictions to
trigger a sentencing enhancement, the law required the Government to give notice of

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2United States v. Wilkes, 20 F.3d 651(5th Cir. 1994)(§ 2255 waiver); United States v.
Melancon, 972 F.2d 566 (5th Cir. 1992).
3United States v. Portillo, 18 F.3d 290 (5th Cir. 1994).
4See Melancon, 972 F.2d at 567-68.
5See United States v. Thomas, 12 F.3d 1350 (5th Cir. 1994); United States v. Higdon,
832 F.2d 312 (5th Cir. 1987).
2
both convictions, and the Government’s notice was not sufficient. Brady contends that
he did not knowingly and voluntarily waive the right to appeal his sentence. He further
contends that the Government did not provide sufficient notice of the sentencing
enhancement and that his robbery conviction was not a proper basis for the
enhancement.
A defendant may, as part of a valid plea agreement, waive his statutory right to
appeal his sentence on direct appeal and under 28 U.S.C. § 2255, if the waiver is
knowing and voluntary.2 We will uphold a plea agreement when the record clearly
shows that the defendant read and understood it and that he raised no question
regarding any waiver-of-appeal provision.3
The record reflects that Brady knowingly and voluntarily waived the right to
appeal his sentence.4 This waiver was not rendered invalid because he did not then
know the extent of his sentence.
Although Brady reserved the right to raise issues of ineffective assistance of
counsel of which he had no knowledge at the time of sentencing, we decline to address
those claims in this appeal.5 That remains for another day. Accordingly, we do not
reach Brady’s challenges to the U.S.S.G. § 4B1.1 enhancement of his sentence.
The motion to supplement the record is GRANTED.

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3
The sentence appealed is AFFIRMED.

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