IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50908

Summary Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DAVERNE MICHAEL FOY, 

 Defendant - Appellant

Appeal from the United States United States District Court

for the Western District of Texas

USDC No. 1:17-CR-172-1

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM:*

Daverne Michael Foy appeals the 90-month, above-guidelines sentence 

he received upon pleading guilty to conspiracy to distribute and possess with 

intent to distribute 100 kilograms or more of marijuana. Foy asserts that the 

district court plainly erred by applying an upward variance based on 

uncharged criminal conduct. He also contends that his sentence is 

 

* 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

November 29, 2018

Lyle W. Cayce

Clerk

 Case: 17-50908 Document: 00514742291 Page: 1 Date Filed: 11/29/2018
No. 17-50908

2

procedurally and substantively unreasonable. The Government asks us to 

enforce the waiver, contained in the plea agreement, of Foy’s right to appeal 

his sentence “on any ground, including . . . the determination of any period of 

confinement[.]”

“[A] defendant may, as part of a valid plea agreement, waive his 

statutory right to appeal his sentence.” United States v. Melancon, 972 F.2d 

566, 568 (5th Cir. 1992). We review de novo whether the appeal waiver bars 

Foy’s appeal. See United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In 

so doing, we “conduct a two-step inquiry: (1) whether the waiver was knowing 

and voluntary and (2) whether 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). 

Foy does not argue that his appeal waiver was in any way unintelligent 

or involuntary and has therefore waived that issue. See United States v. 

Reagan, 596 F.3d 251, 254 (5th Cir. 2010). In any event, the record reflects 

that Foy’s waiver of his appeal rights was “a voluntary, knowing, and 

intelligent act.” United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). 

Furthermore, the waiver applies to the circumstances at issue in this case; the 

sole exception, permitting an appeal of a sentence exceeding the statutory 

maximum, is inapplicable. See 21 U.S.C. § 841(b)(1)(B)(vii). Although the 

district court wrongly advised Foy that he could appeal his above-guidelines 

sentence notwithstanding the waiver, it did so only at sentencing; as such, the 

court’s misstatement “ha[d] no effect on the validity of the waiver.” United 

States v. Gonzalez, 259 F.3d 355, 358 (5th Cir. 2001). 

Because Foy made an informed and voluntary waiver of his right to 

appeal his sentence on the grounds he now advances, the Government is 

entitled to enforcement of the plea agreement. See United States v. Story, 439 

F.3d 226, 230 n.5 (5th Cir. 2006). Accordingly, Foy’s appeal is DISMISSED. 

 Case: 17-50908 Document: 00514742291 Page: 2 Date Filed: 11/29/2018