IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40035

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SHANE PATRICK LAND,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:13-CR-19

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Shane Patrick Land appeals his conviction and sentence for wire fraud. 

He was sentenced to serve 41 months in prison and ordered to pay $993,869.06 

in restitution. Land’s agreement to plead guilty included a waiver of his right 

to appeal. We agree with the government that the waiver is enforceable. 

Accordingly, we DISMISS the appeal.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 29, 2015

Lyle W. Cayce

Clerk

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A defendant may waive his statutory right to appeal as part of a valid 

plea agreement if (1) the waiver is knowing and voluntary, and (2) 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). Land 

argues that, due to the absence of an audio recording of the rearraignment as 

required by Federal Rule of Criminal Procedure 11(g), the appeal waiver 

contained in his plea agreement is unenforceable. Further, Land claims the 

absence of a recording unfairly prevents him from making a meaningful

argument that his guilty plea was not knowing and voluntary. 

The available record includes the plea agreement and factual statement, 

the minute entry describing the rearraignment, the magistrate judge’s report 

recommending acceptance of the guilty plea (to which Land did not object), and 

the district court’s acceptance of Land’s guilty plea. This is a sufficient record 

to review whether Land knowingly and voluntarily waived his right to appeal 

his conviction and sentence. 

We have held that when the district judge fails to refer specifically to the 

appeal waiver during the exchange required by Federal Rule of Criminal 

Procedure 11, the waiver is still valid when: there is evidence that the 

defendant read the agreement containing the waiver, the defendant indicates

he understood what was in the agreement, and no evidence indicates that the 

defendant failed to understand the waiver. United States v. Portillo, 18 F.3d 

290, 293 (5th Cir. 1994). In two unpublished opinions that we conclude 

properly analyzed the same questions we now face, panels of this court held 

that when there was no recording of the Rule 11 hearing, the available record 

may still support the voluntariness of the waiver. In one opinion, we held that 

“the plea agreement, the factual resume, the magistrate judge’s report, and the 

district court’s order adopting it, demonstrate[] that Williams knowingly and 

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voluntarily waived his right to appeal. . . .” United States v. Williams, 519 F. 

App’x 303 (5th Cir. 2013). In another, we upheld the waiver based on the 

following facts: the defendant signed the plea agreement, which included the 

appeal waiver, beneath a statement that he had read and understood it; the 

appeal waiver was concise and clear; the magistrate judge’s report and 

recommendation found that the defendant understood the appeal waiver and 

agreed to it; and the factual resume attached to the plea agreement also stated 

that the defendant knowingly and voluntarily waived the right to appeal. 

United States v. Palmer, 493 F. App’x 545, 547–48 (5th Cir. 2012).

Land argues that a different unpublished opinion of this court should 

lead us to invalidate the appeal waiver. See United States v. Helton, 203 F. 

App’x 682 (5th Cir. 2006). There, the absence of a Rule 11 transcript caused 

the court to set aside the appeal waiver. The decision not to enforce the waiver 

was explained this way: “we decline to enforce the waiver as the rearraignment transcript has not been included in the record on appeal, 

rendering it impossible to discern whether Helton knowingly and voluntarily 

waived his right of appeal.” Helton, 203 F. App’x at 683. The opinion does not 

suggest that the government argued that evidence other than the plea 

agreement itself proved that the defendant’s appeal waiver was knowing and 

voluntary. Id. We do not see Helton as persuasively indicating we should 

invalidate the appeal waiver here.

We conclude there is no automatic invalidation of the waiver due to the 

absence of a recording. The record in this case contains evidence that Land’s 

appeal waiver was knowing and voluntary. Land’s plea agreement, which 

contained the appeal waiver, includes his signature above a statement that he 

fully understood and voluntarily entered into the agreement. The appeal 

waiver is clear and concise. Beyond the plea agreement itself, the magistrate’s 

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order recommending acceptance of the guilty plea states that the defendant 

consulted with counsel and knowingly and voluntarily entered the guilty plea. 

The defendant did not object to this factual finding. Additionally, the minute 

entry from the rearraignment hearing before the magistrate judge reflects that 

the court reviewed the plea agreement with Land and found the plea was 

voluntarily and knowingly made. This evidence satisfies us that the appeal 

waiver was voluntarily and knowingly made and is enforceable. 

Because the waiver states that Land waived his right to appeal his 

conviction, sentence, and restitution order “on all grounds,” subject to certain 

exceptions not here applicable, the plain language of the waiver bars Land’s 

appellate claims. See Bond, 414 F.3d at 544. Accordingly, the government’s 

motion to dismiss is GRANTED, its motion for summary affirmance is 

DENIED, its alternative motion for extension of time is DENIED, and Land’s 

motion for oral argument is DENIED.

DISMISSED. 

 

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