United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30730

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee,

versus

Frederick Turner, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:21-CR-166-3

______________________________

Before Elrod, Haynes, and Duncan, Circuit Judges.

Per Curiam:*

Frederick Turner pleaded guilty pursuant to a plea agreement to 

conspiracy to distribute and possess with intent to distribute a controlled 

substance (count one) and possession of a firearm in and affecting commerce 

by a felon (count two). He was sentenced within the advisory guidelines 

range to 151 months of imprisonment on count one and 120 months of 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

September 12, 2024

Lyle W. Cayce

Clerk

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No. 23-30730

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imprisonment on count two, to be served concurrently, three years of 

supervised release on each count, to be served concurrently, and a $200 

special assessment. In the plea agreement, Turner waived the right to appeal 

or contest his guilty plea, conviction, sentence, and supervised release, but 

he reserved the right to appeal a sentence exceeding the statutory maximum 

and to raise a claim of ineffective assistance of counsel in an appropriate 

proceeding.

On appeal, he argues that his conviction for possession of a firearm by 

a felon, pursuant to 18 U.S.C. § 922(g)(1), violates the Second Amendment 

in view of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). 

The Government argues that Turner’s constitutional claim is barred because 

he knowingly and voluntarily waived his right to appeal.

We pretermit any issue concerning the timeliness of Turner’s notice 

of appeal. The Government has not raised this issue, and any untimeliness 

would not present a jurisdictional impediment. See United States v. Martinez, 

496 F.3d 387, 388-89 (5th Cir. 2007).

We “review[] de novo whether an appeal waiver bars an appeal.”

United States v. Madrid, 978 F.3d 201, 204 (5th Cir. 2020). To do so, we

conduct a two-step inquiry, first examining “whether the waiver was 

knowing and voluntary,” and then considering “whether the waiver applies 

to the circumstances at hand, based on the plain language of the agreement.”

United States v. Kelly, 915 F.3d 344, 348 (5th Cir. 2019) (internal quotation 

marks and citation omitted).

The record reflects that Turner knowingly and voluntarily waived his 

right to appeal and that the appeal waiver is valid and enforceable. See id.

Turner’s claim challenging the constitutionality of § 922(g)(1) is an appeal of 

his conviction, which does not fall within any exception to the appeal waiver. 

While a defendant is released from an appeal waiver if the Government has 

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breached the plea agreement, see United States v. Gonzalez, 309 F.3d 882, 886 

(5th Cir. 2002), there is no indication in the record that the Government 

failed to abide by its promises.

Further, Turner’s argument that the appeal waiver should not bar his 

appeal of the constitutionality of the statute of conviction lacks merit. We 

have held in numerous cases that valid waivers barred direct appeals and 

collateral challenges of constitutional claims. See, e.g., United States v. 

Caldwell, 38 F.4th 1161, 1161-62 (5th Cir. 2022); United States v. Barnes, 953 

F.3d 383, 388 (5th Cir. 2020); United States v. Burns, 433 F.3d 442, 449-50 

(5th Cir. 2005).

Accordingly, because the Government seeks the enforcement of the 

valid appeal waiver, and because the issue raised by Turner does not fall 

within an exception to the waiver, dismissal of the appeal is appropriate as a 

means of enforcing the Government’s contractual rights under the plea 

agreement. See Kelly, 915 F.3d at 352; see also United States v. Walters, 732 

F.3d 489, 491 (5th Cir. 2013).

APPEAL DISMISSED.

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