IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30571

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TOMMY WALTERS,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

REAVLEY, Circuit Judge:

Tommy Walters appeals following his conviction by a jury of conspiracy 

and substantive drug offenses, as well as unlawful use of communications 

facilities. He challenges the participation of alternate jurors during the jury 

deliberations. Because Walters waived his right to appeal in a sentencing 

agreement, however, we DISMISS the appeal.

I.

Walters was charged in a multi-count, multi-defendant indictment with 

one count of conspiracy to distribute and possess with intent to distribute five 

kilograms or more of cocaine and 50 grams or more of cocaine base, and three 

counts of unlawful use of communication facilities. The Government filed a 

notice of sentencing enhancement pursuant to 21 U.S.C. § 851(a) because 

United States Court of Appeals

Fifth Circuit

FILED

October 10, 2013

Lyle W. Cayce

Clerk

 Case: 12-30571 Document: 00512403617 Page: 1 Date Filed: 10/10/2013
No. 12-30571

Walters had two prior felony drug convictions. The enhancement exposed 

Walters to a mandatory sentence of life imprisonment in the instant case. 

Following the jury’s verdict of guilty, Walters filed motions for a new trial and 

to arrest judgment, arguing that the district court had improperly allowed two 

alternate jurors to participate in the jury deliberations.

Walters subsequently entered into a sentencing agreement with the 

Government in which he agreed to withdraw his pending motions and waive 

his right to appeal the conviction and sentence in exchange for the 

Government’s dismissal of the second statutory sentencing enhancement. As 

a result of this agreement, Walters faced a mandatory minimum sentence of 

twenty years in prison. Walters and his counsel both signed the agreement, 

and at sentencing Walters re-affirmed his intent to enter into the agreement 

after it was read aloud by the Government’s attorney. The district court 

sentenced Walters to a total term of 240 months in prison.

II.

On appeal, Walters seeks to argue that the district court plainly erred 

by allowing two alternate jurors to take part in the jury deliberations. The 

Government argues that the appeal is barred by the appeal waiver in the 

sentencing agreement. We have not previously addressed the enforceability of 

appeal waivers contained in sentencing agreements, although we have 

routinely enforced voluntary and informed appeal waivers contained in plea 

agreements. See, e.g., United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 

1992). Our sister circuits have uniformly held that waivers in sentencing 

agreements are enforceable just as waivers in plea agreements are enforceable. 

See, e.g., United States v. Cheney, 571 F.3d 764, 766 (8th Cir. 2009); United 

States v. Trejo-Nolasquez, 346 F. App’x 374, 375-77 (5th Cir. 2009); United 

States v. Cano, 190 F. App’x 34, 36-37 (2d Cir. 2006); United States v. Stevens, 

66 F.3d 431, 437 (2d Cir. 1995). We agree with our sister circuits.

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The validity of an appeal waiver is an issue of law that we review de 

novo. United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005). We will 

enforce a defendant’s waiver of appellate rights if the waiver was knowing and 

voluntary, and if the waiver applies to the circumstances at hand. United 

States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).

In the instant case, Walters challenges only the voluntariness of his 

appeal waiver. He argues that the waiver was not knowing and voluntary 

because the district court did not address the waiver in open court at 

sentencing and failed to ensure that he fully understood the consequences of 

the waiver. We are not persuaded.

The sentencing agreement expressly indicated that “[t]he defendant 

acknowledges that this Agreement has been entered into knowingly, 

voluntarily, and with the advice of counsel, and that he fully understands it.” 

Both Walters and his counsel signed the agreement. At the sentencing 

hearing, the Government’s attorney read the agreement into the record.

Walters then verbally re-affirmed that he had signed the document and that it 

was his intent to enter into the agreement. He raised no question about the 

waiver. Walters argues that the district court did not discuss or explain the 

waiver provision at the sentencing hearing. But because Walters’s waiver was 

contained in a post-verdict agreement rather than in a pre-trial plea 

agreement, as is typical, the requirement that the district court discuss an 

appeal waiver before accepting a guilty plea is inapplicable. See Fed. R. Crim. 

P. 11(b)(1)(N); Cheney, 571 F.3d at 767 & n.4; Trejo-Nolasquez, 346 F. App’x at 

376. Walters acknowledged both in writing and at the sentencing hearing that 

he intended to enter into and understood the agreement, which contained a 

clear and explicit waiver, and we conclude that the waiver was therefore both 

knowing and voluntary. See United States v. McKinney, 406 F.3d 744, 746 (5th 

Cir. 2005) (“Because McKinney indicated that he had read and understood the 

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No. 12-30571

plea agreement, which includes an explicit, unambiguous waiver of appeal, the 

waiver was both knowing and voluntary.”).

As a result of the sentencing agreement, Walters voluntarily chose the 

guarantee that he would not face a mandatory life term in prison over the 

uncertainty of pursuing an appeal. He may not now avoid the consequences of 

his agreement after having received the benefit of his bargain.

APPEAL DISMISSED.

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