### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 41354 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

–

Appellee , v ersus SCOTT CAMERON SHERMAN , Defendant

– Appellant

.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:13

- CR

- 94

- 5

Before REAVLEY, SMITH, and HAYNES, Circuit Judges. PER CURIAM: *

A grand jury indict ed Scott Sherman on one count of conspiracy to commit mail and wire fraud affecting a financial institution and two counts of wire fraud affecting a financial institution. S herman then waived his right to

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 25, 2015 Lyle W. Cayce Clerk Case: 14-41354 Document: 00513286224 Page: 1 Date Filed: 11/25/2015No. 14

- 41354

2 indictment and pleaded guilty to a bill of information charging hi m with conspiracy to commit wire fraud. As part of the plea agreement, Sherman waived his right to appeal the conviction and sentence, reserving only the right to appeal a sentence imposed in excess of the statutory maximum and a claim of ineffective assi stance of counsel affecting the validity of the guilty plea or appeal waiver. Sherman was sentenced below the guideline range to twenty months of imprisonment and one year of supervised release. The indictment was dismissed on motion of the g overnment. Sherman appeals. During the pendency of this appeal, the parties discovered that the indictment issued on April 11, 2013, was returned more than twenty

- four months after the grand jury had been impaneled. Sherman claims that the
indictment was invalid and deprived the district court of jurisdiction because it was returned after the grand jury’s term had expired. Sherman also con
tends that the district court committed an error under Federal Rule of Crim

inal Procedure 11(c)(1) because it failed to advi se him that the indictment was void. Finally, S he rman maintains that the appeal waiver is unenforceable and that his guilty plea was involuntary as a result of a material misrepresen tation or mutual mistake

. The g overnment moves for summary dismissal, o r alternatively, sum

mary affirmance on the ground that the appeal is barred by the appeal waiver and that the issues are foreclosed. The parties’ positions raise questions as to the knowing and voluntary nature of the guilty plea and appeal waiver. Chal lenges to the voluntariness of a guilty plea are not barred by an appeal waiver and are not foreclosed. Summary disposition is “nec es sary and proper” in “cases where time is truly of the essence” or where “the position of one of the parties is clearly ri ght as a matter of law so that there can be no substantial question as to the Case: 14-41354 Document: 00513286224 Page: 2 Date Filed: 11/25/2015No. 14

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3 outcome of the case, or where, as occurs more frequently, the appeal is friv o
lous.” Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969). Given the parties’ arguments, sum mary dismissal or summary affirmance is inappropriate here. Accordingly, the motion for summary dismissal and the alternative motion for summary affirmance are DENIED. The g overnment is directed to file a brief within thirty days of this o pinion

. Case: 14-41354 Document: 00513286224 Page: 3 Date Filed: 11/25/2015