# United States Court **of Appeals**  **f or 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

**.**
Appeal s from the United States District Court for the Southern District of Mississippi USDC No s
. 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 conviction s

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 13, 2022 Lyle W. Cayce Clerk Case: 21-60773 Document: 00516469348 Page: 1 Date Filed: 09/13/2022No. 21

- 60773 c/w Nos. 21

- 60822, 21

- 60823

2 and sentence s 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 viola tion 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 furtheranc e 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 offens es, 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 applyi ng 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 dismiss the appeal based on the appeal waiver s , which the Government argues were knowing and voluntary and squarely apply to the issues Singl eton 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 app eal waivers bar Singleton’s appeals

. See Case: 21-60773 Document: 00516469348 Page: 2 Date Filed: 09/13/2022No. 21

- 60773 c/w Nos. 21

- 60822, 21

- 60823

3 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 h and, 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 St ates 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 waiver s 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 sentence s , and the appeal waiver s unconstitutionally infringed his statutory right to appeal. As he concedes, however, a panel of this court has previously rejected th o se arguments

. I d. at 567

- 68 ( “ T he uncertainty of A ppellant’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 arg ue that the waivers, each of which expressly provide d 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.
B ecause the waiver s a re valid and enforceable and the Government has invoked the waiver s , Singleton’s appeal s are barred. See Story , 439 F.3d at 230 & n.5. The Government’s motion to dismiss the appeal s is therefore **GRANTED** , and its alternative motion for summary affirmance is **DENIED AS MOOT** 

**.** The appeal s are **DISMISSED**

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