United States Court of Appeals

for the Fifth Circuit

No. 21-60773

consolidated with

Nos. 21-60822, 21-60823

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Kevin Singleton, 

Defendant—Appellant.

Appeals from the United States District Court

for the Southern District of Mississippi

USDC Nos. 5:18-CR-24-1, 5:18-CR-6-1, 5:18-CR-22-1

Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam:*

Kevin Singleton pleaded guilty in three separate cases, which were 

consolidated for sentencing; his pleas were made pursuant to written plea 

agreements which contained waivers of the right to appeal his convictions

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 13, 2022

Lyle W. Cayce

Clerk

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c/w Nos. 21-60822, 21-60823

2

and sentences on any ground. In district court case number 5:18-CR-6 (No. 

21-60822), Singleton pleaded guilty to conspiring to possess cocaine with 

intent to distribute it, in violation of 21 U.S.C. § 846; possessing heroin with 

intent to distribute it, in violation of 21 U.S.C. § 841(a)(1); possessing 50 

grams or more of methamphetamine with intent to distribute it, in violation 

of § 841(a)(1); and possessing a firearm in furtherance of a drug trafficking 

crime, in violation of 18 U.S.C. § 924(c)(1)(A). He was sentenced to 

concurrent 360-month terms of imprisonment for the drug offenses and to 

60 months of imprisonment on the firearm offense, to run consecutively, for 

a total of 420 months of imprisonment. In both case number 5:18-CR-22

(No.21-60823) and case number 5:18-CR-24 (No. 21-60773), he pleaded 

guilty to using a communication facility to facilitate a felony drug offense, in 

violation of 21 U.S.C. § 843(b). For those offenses, he was sentenced to 48 

months of imprisonment to run concurrently with each other and with the 

sentence imposed in case no. 5:18-CR-6.

In this consolidated appeal, Singleton appeals his sentences, arguing 

the district court erred in each case by applying three sentencing 

enhancements: a four-level increase under U.S.S.G. § 3B1.1(a), based on his 

aggravating role in the offense; a two-level increase under U.S.S.G. 

§ 2D1.1(b)(16)(E), based on his pattern of criminal conduct; and a two-level 

increase under § 2D1.1(b)(12), for maintaining a drug-distribution premises. 

The Government has filed a motion to dismissthe appeal based on the appeal 

waivers, which the Government argues were knowing and voluntary and 

squarely apply to the issues Singleton raises on appeal or, in the alternative, 

for summary affirmance.

As part of a valid plea agreement, a defendant may waive his statutory 

right to appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). 

We review de novo whether the appeal waivers bar Singleton’s appeals. See

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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). For a waiver to be knowing and voluntary, the 

defendant must know that he had a right to appeal and that he was giving up 

that right. United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).

Relying on the concurrence in United States v. Melancon, 972 F.2d 566 

(5th Cir. 1992), Singleton argues that the appeal waivers should not be 

enforced because the right to waive an appeal of his sentence could not come 

into existence until after the sentence was pronounced. He asserts that, as a 

result, he could not have knowingly waived his right to appeal his sentences, 

and the appeal waivers unconstitutionally infringed his statutory right to 

appeal. As he concedes, however, a panel of this court has previously

rejected those arguments. Id. at 567-68 (“The uncertainty of Appellant’s 

sentence does not render his waiver uninformed.”). Moreover, “[t]he 

Supreme Court has repeatedly recognized that a defendant may waive 

constitutional rights as part of a plea bargaining agreement.” Id. at 567. 

Singleton does not argue that his appeal waivers were otherwise unknowing 

or involuntary, nor does he argue that the waivers, each of which expressly 

provided that he agreed to waive his right to appeal his sentence on any 

ground whatsoever, do not apply to the circumstances at hand. See 

McKinney, 406 F.3d at 746; Bond, 414 F.3d at 544.

Because the waivers are valid and enforceable and the Government 

has invoked the waivers, Singleton’s appeals are barred. See Story, 439 F.3d 

at 230 & n.5. The Government’s motion to dismiss the appeals is therefore 

GRANTED, and its alternative motion for summary affirmance is

DENIED AS MOOT. The appeals are DISMISSED.

Case: 21-60773 Document: 00516469348 Page: 3 Date Filed: 09/13/2022