United States Court of Appeals

for the Fifth Circuit

No. 21-60878

United States of America, 

Plaintiff—Appellee, 

versus

John Wayne Spell, 

Defendant—Appellant. 

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:19-CR-114 

Before Jones, Smith, and Graves, Circuit Judges.

Per Curiam:*

John Wayne Spell pleaded guilty to possession of material involving 

the sexual exploitation of minors. The district court sentenced Spell and 

ordered restitution. Despite the appellate waiver included in his plea 

agreement, Spell now challenges his sentence and the award of restitution. 

After due consideration, we DISMISS the appeal. 

* This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals

Fifth Circuit

FILED

February 23, 2023

Lyle W. Cayce

Clerk

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FACTS AND PROCEDURAL HISTORY

Spell pleaded guilty to one count of possession of child pornography 

in violation of 18 U.S.C. § 2252(a)(4)(B). As part of his written plea 

agreement, Spell waived the right to appeal his conviction and sentence, or 

the manner in which it was imposed, on any ground. The district court 

sentenced Spell to 120 months of imprisonment, 30 years of supervised 

release, and imposed a $10,000 assessment pursuant to the Amy, Vicky, and 

Andy Child Pornography Victim Assistance Act of 2018. The judgment of 

conviction was entered on November 17, 2021. Spell filed a notice of appeal 

on November 17, 2021. Following a restitution hearing, the judgment was 

amended on January 25, 2022, to include restitution in the amount of 

$52,000. Spell filed an amended notice of appeal to include the restitution 

issue on February 9, 2022.

On May 16, 2022, the government filed a motion to dismiss or, 

alternatively, for summary affirmance on the basis of the appeal waiver. Spell 

filed opposition. The motion was carried with the case. 

STANDARD OF REVIEW

A defendant may waive his statutory right to appeal pursuant to a valid 

plea agreement so long as his waiver is knowing and voluntary. United States 

v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). This court reviews de novo 

the issue of whether an appeal waiver bars an appeal. United States v. Keele, 

755 F.3d 752, 754 (5th Cir. 2014). “To determine the validity of an appeal 

waiver, this court conducts a two-step inquiry. Specifically, this court 

considers whether the waiver was knowing and voluntary and whether, under 

the plain language of the plea agreement, the waiver applies to the 

circumstances at issue.” Id. “In determining whether a waiver applies, this 

court employs ordinary principles of contract interpretation, construing 

waivers narrowly and against the Government.” Id.

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DISCUSSION

Spell asserts that the district court ordered an unreasonably high 

sentence and an unreasonable restitution award. Spell concedes that the 

relief sought is against Fifth Circuit precedent. However, he asserts that his 

arguments raise “important public policy and constitutional concerns that 

may warrant en banc consideration by this court and/or consideration by the 

United States Supreme Court.” Spell also asserts that the appeal waiver 

should not be enforced because he did not know what his sentence would be 

when he pleaded guilty. We disagree.

This court recently considered a similar matter in United States v. 

Meredith, 52 F.4th 984 (5th Cir. 2022). In that case, Christopher Meredith 

attempted to appeal a sentencing enhancement and restitution award after 

waiving his right to appeal. This court concluded that Meredith’s waiver 

foreclosed his arguments on appeal and dismissed his appeal. Id. at 988. 

Meredith waived his right to appeal “on any ground,” including as to any 

“monetary penalty or obligation.” Id. at 986. This court also concluded that 

the waiver was knowing and voluntary.

Spell agreed to waive his right to appeal the conviction and sentence 

in this matter on any ground under 18 U.S.C. § 3742 or “on any ground 

whatsoever.” Pursuant to the plea agreement and supplement, Spell also 

agreed to make full restitution to all victims. Spell’s agreement did not 

include specific language waiving his right to appeal as to any “monetary 

penalty or obligation.” See Meredith, 52 F.4that 986. However, in Keele, this 

court concluded that restitution was encompassed by a general waiver such 

as the one here. Id., 755 F.3d at 756.

Additionally, this court has already disagreed with Spell’s argument 

regarding his uncertainty of sentence at the time he pleaded guilty. See 

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United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992) (“uncertainty 

of Appellant’s sentence does not render his waiver uninformed.”).

Moreover, the record in this matter supports a conclusion that Spell 

knowingly and voluntarily waived his appellate rights. Spell signed a written 

provision on the plea agreement and supplement affirming that he had read 

the agreement, his attorney had explained it, he understood it, and he had 

entered into it voluntarily and knowingly. Before Spell’s plea was accepted, 

he testified that he had read the plea agreement and supplement, discussed it 

with counsel, and understood it. The district court also went over specific 

provisions, including the waiver, and Spell reiterated his voluntary 

agreement.

For these reasons, Spell’s appeal is DISMISSED. The 

government’s motion to dismiss or, alternatively, for summary affirmance is 

DISMISSED as moot. 

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