IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41354

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

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 indicted 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. Sherman then waived his right to 

 

* 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 25, 2015

Lyle W. Cayce

Clerk

 Case: 14-41354 Document: 00513286224 Page: 1 Date Filed: 11/25/2015
No. 14-41354

2

indictment and pleaded guilty to a bill of information charging him 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 assistance 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 government. 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 contends that the district court committed an error under Federal Rule of Criminal Procedure 11(c)(1) because it failed to advise him that the indictment was 

void. Finally, Sherman maintains that the appeal waiver is unenforceable and 

that his guilty plea was involuntary as a result of a material misrepresentation 

or mutual mistake.

The government moves for summary dismissal, or alternatively, summary 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. 

Challenges to the voluntariness of a guilty plea are not barred by an appeal 

waiver and are not foreclosed.

Summary disposition is “necessary and proper” in “cases where time is 

truly of the essence” or where “the position of one of the parties is clearly right 

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: 11/25/2015
No. 14-41354

3

outcome of the case, or where, as occurs more frequently, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 

Given the parties’ arguments, summary dismissal or summary affirmance is 

inappropriate here.

Accordingly, the motion for summary dismissal and the alternative 

motion for summary affirmance are DENIED. The government is directed to 

file a brief within thirty days of this opinion.

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