### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-50438 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. DERRICK WHEATEN, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 5:09-CR-284-1

Before WIENER, STEWART, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Derrick Wheaten pleaded guilty to aiding a nd abetting and possession with intent to distribute 5 0 gr ams or more of cocaine b a s e and was sentenced to 132 months of imprisonment. Wheaten pleade d guilty to the charge pursuant to a written ple a agreement in which he waived the right to appeal his sentence. He contends, however, that the district court f a il e d to ascertain whether he had read and understood the appeal waiv e r provision of the agreement. He thus c l ai m s that he did not knowingly and U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 14 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50438 Document: 00511788238 Page: 1 Date Filed: 03/14/2012No. 11-50438

voluntarily waive the right to appeal his sentence. Wheaten requests that we not enforce the waiver but address the merits of his sentencing issues, namely, that the di s trict court erred in (1) refusing to apply the Fair Sentencing Act of 2010, and (2) converting the amount of cash seized to drug quantity to determine his base offense level. The government seeks enforcement of the waiver. A defendant may waive his right to appeal if the waiver is made knowingly and voluntarily. United States v. McKinney , 406 F.3d 744, 746 (5th Cir. 2005). “A defendant must know that he had a right to appeal his sentence and that he

was giving up that right.” United Sta t e s v . P ortillo , 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). A defendant’s waiver is knowing and voluntary if he indicates that he has read and understood the plea agr e e ment, which contains an “explicit, unambiguous waiver of appeal.” McKinney , 406 F.3d at 746. A district court must ascertain that a d efendant understands provisions in the plea agreement waiving the right to appeal. F E D

. R. C R I M

. P. 11(b)(1)(N). When, as here, the appellant’s challenge to an appeal waiver rests solely

on a Rule 11 deficiency an d th e appellant did not contemporaneously object to the district court’s failure to comply with Rule 11, our review is for plain error in light of the record as a whole. See United States v. Oliver , 630 F.3d 397, 411 (5th Cir.), cert. denied , 132 S. Ct. 758 (2011); United States v. Narvaez , No. 10- 50699, 2011 WL 6004017, at *2 (5th Cir. Nov. 28, 2011) (unpublished). To show plain error, Wheaten must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error but will do so only if it seriously affect s the fairness, integrity, or public reputation of judicial proceedings. Id

. The record reflects that Wheaten’s waiver of his right to appeal his sentence was knowing a n d voluntary and that any defects in the Rule 11 plea colloquy did not affect his substantial rights. The district court asked several
2 Case: 11-50438 Document: 00511788238 Page: 2 Date Filed: 03/14/2012No. 11-50438

questions that probed Wheaten’s understanding of the plea agreement’s terms. The district court asked him to confirm his understanding that he was giving up all the ri gh t s of a jury trial, the voluntariness of his plea, his opportunity to confer with counsel, the wrongfulness of his conduct, and the m axi m u m and minimum penalties. Further, Wheaten’s response that he agreed to the factual basis and that he understood that the government would dismiss the weapons charge in exchange for its use as an enhancement at sentencing indicates that he had read the plea agreement. At n o t i m e did Wheaten indicate at the rearraignment that he did not understand any o f the terms set forth in the agreement. Moreover, Wheaten signed the agreement in which he attested that he had read it and understood its terms. Accordingly, Wheaten should “be held to the bargain to which he agreed.” See McKinney , 406 F.3d at 746. Wheaten also contends, for the first time on appeal, that the government breached the plea agreement by arguing in favor of the base o f f e n se level set forth in the presentence report, m akin g th e p l e a a greement, including the appeal waiver provision, unenforceable. He h a s not, however, demonstrated that his interpretation of the plea agreement was re a s o n able. See United States v. Cerverizzo , 74 F.3d 629, 632 (5th Cir. 1996). Thus, Wheaten has not shown plain

error with respect to his c l ai m that the government breached the plea agreement. See Puckett , 556 U.S. at 135. Finally, Wheaten’s challenge to the cash-to-drugs conversion used to determine his base o f

f ense level does not fall within the plain language of the waiver exception. Therefore, we shall enfo r c e th e waiver to bar his appeal on th i s issue. See McKinney , 406 F.3d at 746. Wheaten’s contention that th e district court erred in refusing to apply the FSA to his case–assuming that the i s s u e falls within an exception to the waiver–is foreclosed by our decision in United States v. Tickles , 661 F.3d 212, 214-15 (5th C ir . 2011), petition for cert. filed, (D e c . 1 5 , 2011) (No. 11-8023), and petition for cert. filed , (Dec. 27, 2011) (No. 11-8268).
3 Case: 11-50438 Document: 00511788238 Page: 3 Date Filed: 03/14/2012No. 11-50438

The judgment of the district court is AFFIRMED.

4 Case: 11-50438 Document: 00511788238 Page: 4 Date Filed: 03/14/2012