Summary Calendar UNITED STATES OF AMERICA v. BRYAN ATHOMAS, SR, also known as Bryan A Thomas

* 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that this opinion should not be published and is not precedent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. 01-30905
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
BRYAN A THOMAS, SR, also known as Bryan A Thomas
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CR-287-1-T
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March 11, 2002
Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Bryan A. Thomas, Sr., appeals from his guilty-plea
conviction and sentence for wire fraud and money laundering in
violation of 18 U.S.C. §§ 1343 and 1956(a)(1)(A)(i). Thomas
argues that 1) his original plea agreement, in which he agreed to
plead guilty only to wire fraud, should have been enforced; 2)
his trial counsel was ineffective for failing to advise him that
his original plea agreement could be enforced and instead

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No. 01-30905
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advising him to agree to a second plea agreement; and 3) the
district court erred in calculating his sentence.
Thomas executed the second plea agreement after the
Government withdrew the first plea agreement prior to Thomas
entering a plea or being indicted. Under the facts of this case,
we conclude that the Government was able to withdraw the first
plea agreement prior to its acceptance by the district court.
See United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980).
We further conclude that Thomas breached the first plea
agreement, which also justified the Government's withdrawal. See
United States v. Ballis, 28 F.3d 1399, 1409 (5th Cir. 1994).
In light of these conclusions, Thomas's counsel was not
ineffective. Thomas's plea agreement contained a valid waiver of
his statutory appellate rights. We conclude that Thomas's waiver
was entered knowingly and voluntarily, and we therefore refuse to
consider Thomas's other arguments. See United States v.
Melancon, 972 F.2d 566, 567 (5th Cir. 1992).
The district court's judgment is AFFIRMED.

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