### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-11117 Summary Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee

v. CEDRIC LAMONTE GRAY, also known as C-Nile, Defendant-Appellant
Appeal from the United States District Court for the Northern District of Texas USDC No. 7:06-CR-7-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Cedric Lamonte Gray pleaded guilty in 2007 to distributing five grams or
more of a mixture containing a detectab l e a m ount of cocaine base, also known

as “crack cocaine,” in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) (2007). The district court sentenced Gray to 188 months in prison, which was at the bottom of his advisory g u idelines range of 188 to 235 months in prison and below his maximum statutory sentence of 40 years in prison. In 200 8 , t h e d i s trict court U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 28, 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR
. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR
. R. 47.5 .4. Case: 10-11117 Document: 00511677286 Page: 1 Date Filed: 11/28/2011No. 10-11117

grante d G ray’s 28 U.S.C. § 2255 motion, permitting him to file an out-of-time appeal. Gray’s appellate arguments are based on the Fair Sentencing Act of 2010 (“FSA”), which became effective more than three years after Gray was sentenced and which reduced the statutory penalties for certain crack cocaine offenses, and the Sentencing Commission’s temporary, e mergency amendment to § 2D1.1 of the Sentencing Guidelines, effective November 1, 2010, which implemented the 1

e mergency directive in section 8 of the FSA. The emergency amendment ha s 2 since been re-promulgated as a permanent amen d m e n t and made retroactive, effective November 1, 2011. Gray argues that under the amend m e n t , his 3 advisory guidelines range of imprisonment would be 110 to 137 months. He thus asks us to vacate his sentence and remand his case for re-sentencing so that he may received a reduced sentence. He alternatively asks us to hold that he will not be prevented from later filing a motion to reduce his sentence pursuant to 18 U.S.C § 3582(c)(2). The Government contends that it is entitled to a dismissal because Gray’s appeal is barred b y t h e a ppeal waiver in his written plea agreement

. The Government alternatively contends that it is entitled to summary affirmance because the amendment w i ll substantively change the Sentencing Guidelines. The Government alternatively moves for an extension of time to file a brief. We agree with the Government that Gray’s appeal is barred by the waiver of appeal rights in his plea agreement. The waiver states: Gray waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal from his conviction and sentence. H e f u r ther

See U. S. S E NT E N C ING G UID E LIN E S MANU AL app . C (Vol

. III), Ame ndm ent 748, pp . 381- 1 82 ( 2011)

. Pub. L. 111 –220, 124S tat

. 2372 (201 0). 2 See U. S. S E NT E N C IN G G UID E LIN E S MANU AL app . C (Vol

. III), Ame ndm ents 750 & 759, 3 pp . 391- 98, 415- 421 (201 1). 2 Case: 10-11117 Document: 00511677286 Page: 2 Date Filed: 11/28/2011No. 10-11117

waives his right to contest his conviction and sentence in any collateral proceeding, including proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255. Gray, however, reserves the righ t s ( a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum punishment, or (ii) an arithmetic error at sentencing, (b) t o c h allenge the voluntariness of his plea of guilty or this waive r , and (c) to bring a claim of ineffective assistance of counsel. 4

This court reviews the validity of an appeal waiver de novo . A defendant 5 may waive his or her appeal rights “‘provided (1) his or her waiver is knowing and voluntary, and (2) the w a i v e r a pplies to the circumstances at hand, based

on the plain language of the agreement.’” Gray does not argue that his waiver 6 of appeal rights was unknowing or involuntary. Nor does Gray argue directly that the waiver of appeal rights does not apply to the circumstances a t hand. G r a y s u g g ests that he “[has] an arguable issue in this appeal concerning the retroactivity of the November 1, 2010 emergency guideline amendment,” but he 7 does not explain how that circumstance fits into one of the four exceptions to the waiver of appeal rights in his plea agreement, or why this court should conclude that the waiver was not meant to apply to that circumstance. While this court must “construe appeal waivers narrowly, and against the government,” there is no basis to conclude that the waiver is inapplicable in this 8

case. Because Gray’s sentence did not exceed the statutory maximum and was not based on an arithmetic error, and because he challenges neither t he

R. 1, 43. 4
Uni ted Sta tes v. Ba

ym on , 312 F.3d725 , 727 (5t h Cir

. 2002)

. 5
Uni ted Sta tes v. Jac obs , 635 F.3d 778, 781 (5t h Cir. 2011) (quo ting Uni ted States v. 6 Pal me r , 456 F.3d484 , 488 (5t h Cir

. 2006) ). Id. 7 Pal me r , 456 F.3dat488

. 8 3 Case: 10-11117 Document: 00511677286 Page: 3 Date Filed: 11/28/2011No. 10-11117

voluntariness of his plea nor the effectiveness of his counsel, his waiver of appeal rights bars the instant challenge to his sentence. T h e Government’s motion to dismiss Gray’s appeal is GRANTED I N PART. The appeal is DISMISSED, without prejudice to Gray filing a motion for relief in the district court under 18 U.S.C § 3582(c)(2).

4 Case: 10-11117 Document: 00511677286 Page: 4 Date Filed: 11/28/2011