# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 60950 Summary Calendar

**United States of America,**
Plaintiff

— Appellee **,**

versus **Jeffery Benard Brown,** Defendant

— Appellant

**.**

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:17

- CR

- 22

- 1

Before **Wiener, Southwick,** and **Duncan,** Circuit Judges

**. Per Curiam**  **:** * Jeffery Benard Brown pleaded guilty, pursuant to a written plea agreement, to one count of possession of a firearm by a felon in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). The district court sentenced him to a within

- guidelines, 120

- month term of imprisonment. On appeal, Brown

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4.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

### FILED April 22, 2021 Lyle W. Cayce Clerk Case: 20-60950 Document: 00515832514 Page: 1 Date Filed: 04/22/2021No. 20

- 60950

2 argues that the Government breached the plea agreement by failing to move for a substantial assistance departure or reduction

. The Government moves to dismiss based on the appeal waiver in Brown’s plea agreement or, alternatively, for summary affirmance. In response, Brown argues that he did not knowingly and voluntarily enter into the plea agreement. As part of a valid plea agreement, a defendant m ay waive his statutory right to appeal. United States v. Story , 439 F.3d 226, 231 (5th Cir. 2006). We review the enforceability of an appeal waiver de novo. United States v. Winchel , 896 F.3d 387, 388 (5th Cir. 2018). To determine whether the appeal

wa iver bars an appeal, 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 has a right to appeal and that he is giving up that right. See United States v. McKinney , 406 F.3d 744, 746 & n.2 (5th Cir. 2005). Brown ’s contention that his waiver was not knowing and voluntary is belied by the record. Brown was fully advised of his right to appeal and he acknowledged that he understood what the waiver connoted and its consequences

. See id.
Brown asserts that the right to challenge a se ntence should not be waivable and that appeal waivers are unfair contracts of adhesion

. However, Brown has not identified any terms deemed unconscionable by this court

. We ha ve routinely upheld appeal waivers similar to Brown’s. See , e.g. , United States v. Burns , 433 F.3d 442, 443

- 44 , 449

- 50 (5th Cir. 2005) ; Bond , 414 F.3d at 543

- 45

. Moreover, i t is well

- settled that a defendant may waive his right to appeal as part of a valid plea agreement. See Story , 439 F.3d at 231; United States v. M elancon , 972 F.2d 566, 567 (5th Cir. 1992)

. Because Brown does not allege any other basis for attacking the appeal waiver , the waiver is valid and en forceable. See Bond , 414 F.3d at 544. Case: 20-60950 Document: 00515832514 Page: 2 Date Filed: 04/22/2021No. 20

- 60950

3 An appeal waiver does not prevent a defendant from raising a claim that the Government breached the plea agreement. See United States v. Casillas , 853 F.3d 215, 217 (5th Cir. 2017). We apply general principles of contract law in interpreting a plea agree ment and consider “whether the [G]overnment’s conduct is consistent with the defendant’s reasonable understanding of the agreement.” United States v. Hinojosa , 749 F.3d 407, 413 (5th Cir. 2014) (internal quotation marks and citation omitted). If the lang uage of a plea agreement is unambiguous, we “generally will not look beyond the four corners of the document” to determine the intention of the parties. United States v. Long , 722 F.3d 257, 262 (5th Cir. 2013). Here, t he terms of the plea agreement are c lear and unambiguous that the Government had sole discretion to determine if Brown provided substantial assistance , as well as sole discretion to request a downward departure or sentence reduction even if Brown had provided substantial assist ance
. Brown d oes not allege any unconstitutional motiv ation for the Government’s conduct. See United States v. Aderholt , 87 F.3d 740, 743 (5th Cir. 1996). Accordingly, Brown has failed to show that the Government breached the plea agreement.
B ecause the appeal wai ver is valid and enforceable and the Government has invoked the waiver, Brown’s appeal is barred. See Story , 439 F.3d at 230 & n.5. The Government’s motion to dismiss the appeal is **GRANTED** , and its alternative motion for summary affirmance is **DENIED**

. The appeal is **DISMISSED**

. Case: 20-60950 Document: 00515832514 Page: 3 Date Filed: 04/22/2021