### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 30818

UNITED STATES OF AMERICA , Plaintiff

–

Appellee ,

versus
RICHARD A. HIGGINS , Defendant

– Appellant

.

Appeal from the United States District Court for the Eastern District of Louisiana

Before STEWART, Chief Judge, JOLLY and SMITH , Circuit Judges

. JERRY E. SMITH, Circuit Judge :

Richard Higgins pleaded guilty of receipt of child pornography and appeals his sentence. Appeal has been waived, so the appeal is dismissed.

I. In 1983, Higgins was convicted of crimes against nature and carnal
know l edge of a juvenile under Louisiana la w for engaging in fellatio and sexual United States Court of Appeals Fifth Circuit 

### FILED January 10, 2014

Lyle W. Cayce Clerk Case: 12-30818 Document: 00512496730 Page: 1 Date Filed: 01/10/2014No. 12

- 308 18
intercourse with his thirteen

- year
- old step

- niece. In 2009, federal agents dis

covered , on Higgins’s computer, appr ox i mately 10,000 images and 2,500 videos depicting the sexual exploitation of chil dren ranging in age from infants to fif

teen years

. H iggins pleaded guilty to one count of receipt of materials involving sexual exploitation of minors and was sentence d to fifteen years of impris

onment and five years of super vised release (“SR”)

. At his rearraignment, Higgins entered into a plea agreement that
included a general waiver of the ri ght to appeal his sentence, reserving only the right to ap peal “any punish ment imposed in excess of the statutory maxi

mum

. ” 1 Although the district court did not question Higgins specifically regard ing the waiver , it ask ed him about hi s reading and understanding of the plea agreement ; i t directed the prosecutor to show Higgins the agree ment once again , to which Higgins responded that he had read it. The court then asked whether there were any provisions that Hig gins did not under stand, to which Higgins responded “No.” 2

1 “Except as otherwise provided in this paragraph, the defendant her e by expressly waives the right to appeal his sentence on any ground, including but not limited to any appeal right conferred by Title 18, United States Code, Section 3742 on the defendant, and the defen

dant further agrees not to contest his sentence in any post

- conviction proceeding, including but not limited t o a proceeding under Title 28, United States Code, Section 2255. The defen

dant, however, reserves the right to appeal any punishment imposed in excess of the stat u
tory minimum.”

2 “The Court: Mr. [Prosecutor], would you show Mr. H iggins the plea agree m ent letter. I just need you to take a look at this, Mr. Hig

ins, and let me know if you have seen it before. The Defendant: Yeah, I saw it. The Court: Is there anything in that document you don’t understand? The Defendant: No. The Court: Does it reflect the agreement you have with the government with respect to these charges? The Defendant: Yes. 2 Case: 12-30818 Document: 00512496730 Page: 2 Date Filed: 01/10/2014No. 12

- 308 18 Additionally, the plea agreement acknowledged Hi ggins’s Louisiana con

victions and that the y constitute conviction s of “abusive sexual conduct involv

ing a minor or ward” for purposes of 18 U.S.C. § 2252. As a result, the min i

mum sent ence would be fifteen years. The distr ict court specifically quest ioned Higgins regarding th at section of the agreement and its consequences on sen
tenc ing. 3 In response, Higgins repeatedly asserted that he did not want out of jail and w ished to sign the plea agreement. 4 At the oral pronouncement, the court added sever al spec ial conditions of

The Court: Is it your signature on the last page? The Defendan t: Yes.”

3 “ The Court: Also, the government would h ave to prove that you were previ

ously convicted of a crime relating to abusive sexual conduct involv ing a minor in order for yo u to receive the enhancement. Do you understand that? The Defendant: Yes, I guess. The Court: Do you want to talk to Mr. Montgomery about that for a minute ? (Discussion between the defendant and his counsel off the record.) The Defendant: Yes, Your Honor. The Court: Do you understand that there is

––because of the previous con

viction, there is an enhancement of the sentence. That’s why we had talked about the mandatory minimum that we talked about. I just need to know if you understand that? [sic] The Defendant: I understand it.”

4 “The Defendant: Your Honor, I don’t want any supervised release. I want to go to jail until I die. The Court: Okay. The Defendant: You know, I have talked

–– that’s why I am here pleading guilty.

. . . The Defendant: I don’t want out of jail. If you gave me five years, you know, hypothetically, you know, what then? I’m 71 years old, I have got to try to figure ou t what I’m going to do the rest of my life? I don’t want out. So if you give me 100 years or life, I will take it, you know. That’s the only reason I am signing all these papers, I am guilty, I did what I said that I did and I don’t want out.” 3 Case: 12-30818 Document: 00512496730 Page: 3 Date Filed: 01/10/2014No. 12

- 308 18
SR , including “the drug abuse treatment and/or testing condition” and “the search and seizure condition.” Although the court did not discuss th o se con di

tions in detail during oral sentencing , the written pro nouncement included addi tional language requiring Higgins (1) to contribute to the cost of the drug testing 5 and (2) to warn any other residents with whom he lived that they may be subject to search pursuant to his con di tions of SR

. 6 On appeal, Higgins argues that the district court erred in finding that his prior convictions constituted “abusive sexual relations with a minor or ward” under § 2252 , raising the min i mum statutory imprisonment from five to fifteen years. H iggins also main tains that the written pronouncement conflicts with the oral pronounce ment by impermissively broadening the conditions of SR . Additionally, Higgins con tends that the appeal waiver is invalid because it was not made knowingly or vol untarily and, alternatively, that i t does not apply to his argument regarding the conflict in sentences because that appeal does not concern his “sentence.”

II

. An appeal waiver bars an appeal if the waiver (1) was knowing and vol

untary and (2) applies to the circumstances at hand , bas ed on the plain lan

guage of the agreement. United States v. Bond , 414 F.3d 542, 544 (5th Cir.

5 “The de fendant shall participate in a program of testing and/or treatment for drug abuse, as directed by the probation officer, until such time as the defendant is released from the prog ram by the probation officer. The defendant shall contribute to the cost of such treat

ment to the extent that the defendant is deemed capable by the probation officer .” (emphasis added).

6 “The defendant shall submit his person, residence, office or vehicle to a search, con

ducted by a United States Probation Officer at a reasona ble time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release; the defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition .” (emphasis added). 4 Case: 12-30818 Document: 00512496730 Page: 4 Date Filed: 01/10/2014No. 12

- 308 18 2005). Under th at test, Higgins has waived appeal.

A.
F or a waiver of appeal to be knowing and voluntary, a defendant must
know that he had a right to appeal his sentence, that he was giving up that right, and the consequences of giving it up. 7 We will , however, e nforce a waiver on appeal regardless of whether the district court addressed i t directly whe re the record indicates the def endant has read and understood his plea agreement and has raised no questions about the waiver. 8 T he district court specifically asked Higgins whether he had read and understood the plea agreement and whether the signature was his. Higgins answered affi rmatively and asked no questions. Because Higgins knowing ly and voluntarily waived his right to appeal, he is bound by the obligations of the plea agreement.

7 See United States v. Portillo , 18 F.3d 290, 292 (5th Cir. 1994 ); United States v. Baty , 980 F.2d 977, 979 (5th Cir. 1992).

8 See United States v. McKinney , 406 F.3d 744, 746 (5th Cir. 2005) (“Because McKin

ney indicated that he had read and understood the plea agreement, which includes an expli

cit, unambiguous waiver of appeal, the waiver was both knowing and voluntary.”); Bond , 414 F.3d at 544 (“Because [the d efendant] indicated that he read and understood the agreement, which includes an explicit, unambiguous waiver of appeal, the waiver was both knowing and voluntary.”) ; Portillo , 18 F.3d at 292

– 93 (“We hold [ ] that when the record of the Rule 11 hear ing clearly indicates that a defendant has read and understands his plea agreeme nt, and that he raised no question regarding a waiver

- of

- appeal provision, the defendant will be held to the bargain to which he agree d , regardless of whether the court specifically admonished him concerning the waiver of appeal.”); United States v. Wheato n , 465 F. App’x 321, 323 (5th Cir.) (per curiam) (“Wheaten’s response .

. . indicates that he had read the plea agree ment. At no time did Wheaten indicate

. . . that he did not understand any of the terms set forth in the agreement. Moreover, Wheaten si gned the agree ment in which he attested that he had read it and understood its terms.”), cert. denied , 133 S. Ct. 298 (2012) ; cf. Baty , 980 F.2d at 978

– 79 (holding that inadequate explanation of waiver

- of

- appeal pro vi sion speci fi cally ques

tioned by def endant rendered the waiver invalid); United States v. Robinson , 187 F.3d 516, 518 (5th Cir. 1999) (“It is clear from the plea colloquy that the district court did not ask Rob inson whether he had read the written plea agreement and understood it.”). 5 Case: 12-30818 Document: 00512496730 Page: 5 Date Filed: 01/10/2014No. 12

- 308 18
B. First, we must address whether the plain language of the waiver applies to Higgins’s appeal regarding the district court’s ruling that a fifteen

- year mandatory

- minimum term of imprisonment applied based on Higgins’s prior
conviction s

. In his appeal waiver, Higgins reserved only “the right to appeal any punishment imposed in excess of the statuto ry maximum.” The statutory maximum under the plea agreement

— in which Higgins acknowledged a prior conviction under Louisiana law relating to the “abusive sexual conduct involve

ing a minor or ward ”

— wa s forty years ; t he max imum in the absence of such a qualifying convi ction was twenty years. 18 U.S.C. § 2252(b)(1). Because Hig

gins’s fifteen

- year term is less than both maximum sentences, his claim regard

ing th e fifteen

- year manda tory minimum falls within the waiver provi sion and is waived on appeal.

C

. Next, we address whether the plain language of the waiver applies to Hig gins’s appeal regarding the conditions of SR

. 9 Higgins argues that the waiver does not apply to his contention that the written judgment conflicts with the oral pronouncement o f sentence because the appeal waiver extends only to Higgins’s actual “sentence” 10 and th at only the oral pronouncement of
sentence should be considered the “sentence” for purposes of the appeal waiver.

9 Al though Higgins argues that the government has failed to object to his appeal regard ing the conditions of SR on appeal and that, as a result, they have waived the appeal waiver, United States v. Story , 439 F.3d 226 , 231 (5th Cir. 2006), we do not agree. The gov

ernment has adequately invoked the waiver on appeal.

10 “[T]he defendant hereby expressly waives the right to appeal his sentence on any ground, including but not limited to any appeal right conferred by Title 18, United States Code, Section 3742 on the defendant, and the defendant further agrees not to contest his

sen tence in any post

- conviction proceeding, including but not limited to a proceeding under Title 28, United States Code, Section 2255.” (emphasis added). 6 Case: 12-30818 Document: 00512496730 Page: 6 Date Filed: 01/10/2014No. 12

- 308 18 We disagree : T he waiver applies. Although the waiv er provision does not explicitly include the terms of SR, this court

— as well as Congress

— has deemed SR to be a part of the sen

tence

. 11 In fact, 18 U.S.C. § 3742

— under which Higgins claims appellate jurisdiction

— also includes conditions of SR as a part of the sentence. 12 As a result, the term “sentence” unambiguously include s SR and its conditions as a matter of law. Higgins further contends, however, that even if conditions of SR were included within the “sentence,” only those conditions i n the oral prono unce
ment can be considered his “sentence” for purposes of waiver

. Therefore, his

argu ment continues, any appeal regarding potential discrepancies in the writ

ten pronouncement is not an appeal of the sentence but is instead an attempt to bring the judgm ent in line with the actual, oral sentence. As his lone sup

port, Higgins quotes United States v. Shaw , 920 F.2d 1225 , 1231 (5th Cir. 1991) : “ [W] here there is any variation between the oral and written pro

nounce ments of sentence, the oral sentence prevails.” This argu ment is not convincing because Shaw concerned the merits of an appeal regarding conflict between oral and written pronounceme nts of sen

tence

. Id. Though it is true that the oral pronouncement prevails where a

con flict is found, th is settled law regarding the merits of the appeal does not

11 See United States v. Benbrook , 119 F.3d 338, 34 1 n.10 (5th Cir. 1997); 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a mis de meanor, may include as a part of the sentence a requirement that the defendant be placed on a term of [SR] after imprisonment.” (emphasis added)).

12 “A defendant may file a notice of appeal in the district court for review of an other

wise final sentence if the sentence

. . . is greater than the sentence specified in the applicable guide line range to the exten t that the sentence includes a greater fine or term of impris on
ment, probation, or [SR] than the maximum established in the guideline range, or includes a more limiting condition of probation or [SR] under section 3563(b)(6) or (b)(11) than the max

i mum established in the guideline range.” 18 U.S.C. § 3742 (a) (emphasis added). 7 Case: 12-30818 Document: 00512496730 Page: 7 Date Filed: 01/10/2014No. 12

- 308 18 speak to whether a conflict between the two sentences constitutes an appeal of the sentence for purposes of waiver. 13 In other words, the fact that the oral

pro nouncement prevails whe n there is variation does not mean that the writ

ten pronouncement is not also the “sentence” for purposes of appeal. Additionally, the nature of the appeal for conflict between the two sen

tences suggests that such an appeal is an appeal of the sentence. The very

c on cern that there should be no conflict between the two sentences is l argely based on problems endemic to a conflicting sentence and the constitutional
issues inherent to a materially different second sentence for which the defen

dant was not present. 14 Although when in conflict one necessarily must control

— and we have decided that it must be the oral sentence

— that does not change the fact that they are both considered the sentence and that they may differ in
content if they do not conflict but one mer ely address es ambiguities in t he
other. 15 Therefore, an appeal regarding a potential conflict between the two

sen tences is an appeal of a sentence under the appeal waiver. Because Higgins’s challenge to the conditions of SR in the written judg

ment is an appeal of his sentence under 18 U.S.C. § 3742 , it is covered by the waiver of appeal unless it constitutes a “ punishment imposed in excess of the statutory maxi mum ” as provided by the appeal waiver. Although in address

ing the statutory maximum in the im prisonment context we need consider only

13 T he main reason that the oral pronouncement of sentence prevails over the written in situations of conflict is because the defendant has a constitutional right to be present at
sen tencing , and defendants are often not present for the written pronouncement. See United States v. Torres

- Aguilar , 352 F.3d 934, 935

– 36 (5th Cir. 2003) (per curiam); United States v. Martinez , 250 F.3d 941, 94 2 (5th Cir. 2001) (per curiam).

14 See To rres
- Aguilar , 352 F.3d at 935

– 36 ; Martinez , 250 F.3d at 942

.
15 See United States v . Warden , 291 F.3d 363, 364

– 65 (5th Cir. 2002) (holding that dif ferences between two sentences were mere ambiguity consistent with the intent of the court); Martinez , 250 F .3d at 942 (“If, however, there is merely an ambiguity between the two sentences, the entire record must be examined to determine the district court’s true intent.”). 8 Case: 12-30818 Document: 00512496730 Page: 8 Date Filed: 01/10/2014No. 12

- 308 18 the length of time authorized by statute, an appeal regarding the conditions of SR must be reviewed under 18 U.S.C. § 3583 . T he statutory limitations to

con ditions of SR under § 3583 are as follows : The court m ay order, as a further condition of supervised release, to the extent that such condition

— (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2) (B), (a)(2)(C), and (a)(2)(D) ; (2) involves no greater deprivation of liberty than is reasonably

nec essary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statement issues by the Sentencing Commission pursuant to 28 U.S.C. 994(a); any cond i

tion set forth as a discretionary condition of probation in sec tion 3563(b) and any other condition it considers to be appropriate.
18 U.S.C. § 3583 (d)

. Because Higgins puts forth no argument that the conflict in sentencing violates th ese statutory lim itations in a way that constitutes a

pun ishment in excess of the statutory maximum, his conditions

- of

- SR argu
ments fall within the appeal waiver and are waived on appeal. 16 Because all of Higgins’s arguments on appeal have been wai ved under his plea agreement, the appeal is DISMISSED

.

16 See United States v. McDaniel , No. 13

- 10397, 2013 WL 5960715 , at *1 (5th Cir. Nov. 8, 2013) (per curiam) (unpublished) (holding that appeal waiver applied where defen

dant chal lenged conditions of SR because of perceived conflict between oral and written pro

nouncements). Because Higgins does not argue that this conflict is merely a cl erica l error that should be corrected, there is no need to determine whether the appeal waiver applies to such corrections under Federal Rules of Criminal Procedure 36. See United States v. Rosales , 448 Fed. App’x 466 , 46 6−6 7 (5th Cir. 2011) (per curiam) (remanding for correction of clerical error in written judgment notwithstanding enforce able appeal waiver). 9 Case: 12-30818 Document: 00512496730 Page: 9 Date Filed: 01/10/2014