IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60415

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDWARD DONNELL AMMONS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:14-CR-74-1

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Pursuant to an agreement with the Government, Edward Donnell 

Ammons pleaded guilty to one count each of conspiracy to possess with intent 

to distribute 100 grams or more of heroin and possession of a firearm by a felon. 

The district court imposed concurrent 188-month within-guidelines sentences 

on each count. Ammons appeals his sentences, arguing that they were 

improperly calculated and/or enhanced, including under the Armed Career 

* Pursuant to 5TH CIR. R. 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. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 22, 2016

Lyle W. Cayce

Clerk

 

 Case: 15-60415 Document: 00513560728 Page: 1 Date Filed: 06/22/2016
No. 15-60415

Criminal Act (ACCA). See 18 U.S.C. § 924(e)(1). The Government moves to 

dismiss the appeal, or, alternatively, for summary affirmance, asserting that 

Ammons’s challenges to his sentences are barred by the appeal waiver 

contained in his plea agreement.

“This court reviews de novo whether an appeal waiver bars an appeal.” 

United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014), cert. denied, 135 S. 

Ct. 1174 (2015). 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).

At the plea hearing, Ammons affirmed to the district court that he had 

read and discussed with counsel all of the terms of the plea agreement, 

including the waiver of his right to appeal, and that he both understood and 

voluntarily agreed to those terms. The record thus reflects that Ammons knew 

he had a right to appeal and that he was giving up that right. See United 

States v. McKinney, 406 F.3d 744, 746 n.2 (5th Cir. 2005). To the extent 

Ammons asserts that his plea was not knowing and voluntary because he did 

not learn of his potential exposure to an enhanced sentence under the ACCA

until after he entered the plea, see United States v. Guerra, 94 F.3d 989, 995 

(5th Cir. 1996), that assertion is contradicted by the record, which reflects that 

Ammons was expressly advised about, and affirmed his understanding of, the 

potential ACCA enhancement prior to his guilty plea. Accordingly, the first 

step of our inquiry satisfies us that Ammons’s plea was both knowing and 

voluntary. See Bond, 414 F.3d at 544; United States v. Dees, 125 F.3d 261, 269 

(5th Cir. 1997).

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No. 15-60415

Moreover, afforded its plain meaning, the language of the appeal waiver 

in Ammons’s plea agreement “applies to the circumstances at issue” in this 

case. United States v. Harrison, 777 F.3d 227, 233 (5th Cir. 2015). That waiver

expressly bars an appeal “on any ground whatsoever,” except for a sentence 

based on a departure from the Sentencing Guidelines. As the district court 

imposed concurrent sentences within the applicable guidelines range, there 

was no departure. See Irizarry v. United States, 553 U.S. 708, 714 (2008);

United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011). Although Ammons 

argues for an expansive definition of “departure” that would encompass any

claimed misapplication of the Guidelines, we adhere to the Supreme Court’s 

strict delineation of that term. See Irizarry, 553 U.S. at 714.

By its plain terms, to which Ammons freely and intelligently acceded, 

the appeal waiver in this case suffices to bar review of Ammons’s sentences on 

the grounds asserted. See Bond, 414 F.3d at 544; McKinney, 406 F.3d at 746. 

The Government is entitled to enforcement of that waiver on contractual 

grounds. See United States v. Story, 439 F.3d 226, 230 n.5 (5th Cir. 2006). 

Accordingly, the motion to dismiss the appeal is GRANTED, and the appeal is 

hereby DISMISSED. The motion for summary affirmance is DENIED.

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 Case: 15-60415 Document: 00513560728 Page: 3 Date Filed: 06/22/2016