UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-60879

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LEROY BAYMON, JR.,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Mississippi

November 15, 2002

Before HIGGINBOTHAM, DUHE ! and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Leroy Baymon, Jr., was charged by bill of information with

four c ounts of being a public official who accepted a thing of

value in retur n for introducing prohibited contraband into a

federal prison in violation of 18 U.S.C. § 201(b)(2)(C). Pursuant

to a plea agreement, he pled guilty to two counts of the bill of

information. In the plea agreement, Baymon waived his right to

appeal his conviction and his sentence. He was sentenced and now

appeals claiming that his waiver does not prevent this appeal, the2

district court committed plain error because the conduct alleged by

the government and admitted by him did not constitute a violation

of 18 U.S.C. § 201(b)(2)(C), and, in the alternative, pursuant to

the United States Sentencing Guidelines he should have been given

a reduction in his sentence for acceptance of responsibility.

BACKGROUND

Leroy Baymon, Jr., worked as a cook foreman at Yazoo City

Federal Correctional Facility. On April 17, 2001, Baymon was

charged by bill of information with four counts of accepting bribes

to introduce contraband into a federal correctional facility.

Counts 1 and 2 alleged Baymon received postal money orders in

exchange for smuggling in cell phones. Counts 3 and 4 alleged

Baymon received $300 in postal money orders in exchange for

smuggling in a watch and a chain and me dallion. All these items

were considered prohibited contraband and employees of the prison

were not allowed to give these items to prisoners.

On June 18, 2001, Baymon waived indictment and pled guilty to

counts 3 and 4 pursuant to a plea agreement, which co ntained an

appeal waiver. The waiver provision stated in pertinent part:

The Defendant

. . . hereby expressly waives the right to

appeal the conviction and/or sentence imposed in this

case, or the manner in which that sentence was imposed,

on the grounds set forth in Section 3742, or on any

groun d whatsoever, and expressly waives the right to

contest the conviction and/or sentence or the manner in

which the sentence was imposed in any post-conviction

proceeding, including but not limited to a motion brought

under Section 2255, Title 28, United States Code and any

type of proceeding claiming double jeopardy or excessive3

penalty as a result of any forfeiture ordered or to be

ordered in this case.

R. at vol. 1, p. 15.

During the guilty plea hearing on June 18, 2001, Baymon was

placed under oath and he admitted to being a “public official”

working at the prison and that he smuggled in prohibited contraband

in exchange for the postal money orders. Additionally, before

accepting Baymon’s guilty plea, the district court directed Baymon

to listen to the prosecutor’s description of “an y Memorandum of

Understanding that [the prosecutor] might have with this defendant,

particular referencing any waivers of appeal that may be contained

therein.” R. at vol. 2, p. 12. The prosecutor then recited the

te r ms of the plea agreement. Then the court made sure the

agreement was signed by all the parties. Following a recital of

the factual basis for the plea by the prosecutor, which referenced

Baymon’s status as an employee at the Yazoo City facility, the

defendant acknowledged his guilt and the d istrict court accepted

the plea.

On October 9, 2001, Baymon was sentenced to six months in

prison on each count, to run concur rently; three years of

supervised release, and a $200 special assessment.

On appeal, Baymon argues that neither his unconditional guilty

plea nor the appeal waiver contained in his plea agreement prevents

this appeal. He argues that the factual basis was insufficient to

s upport his plea insofar as it failed to establish that he was a4

“public official” pursuant to 18 U.S.C. § 201(a). Further, Baymon

argues that the district court clearly erred in failing to award

him a reduction in his sentence for acceptance of responsibility.

The Government argues that Baymon has waived his opportunity

to challenge the factual basis of the bill of information by virtue

of his unconditional guilty plea and the appeal waiver provision in

the plea agreement. Morever, according to the government, under

the plain error standard the evidence was sufficient to show that

Baymon was a “p ublic official” within the meaning of 18 U.S.C. §

201. Finally, the government asserts that the district court

properly refused to award Baymon a reduction in sentence for

acceptance of responsibility.

DISCUSSION

Whether Baymon’s guilty plea and waiver of his right to appeal in

the plea agreement prevent the Court from addressing this appeal.

This Court must determine whether Baymon’s unconditional

guilty plea with his admission that he was a pub lic official and

his waiver of his right to appeal in his written plea agreement

prev ent his appeal in this case. This is a question of law and,

therefore, we review the issue de novo

. U nited States v. Izydore

,

167 F.3d 213, 223 (5th Cir. 1999).

The right to appeal a conviction and sentence is a statutory

right, not a constitutional one, and a defendant may waive it as

part of a plea agreement. U nited States v. Dees

, 125 F.3d 261, 269

(5th Cir. 1997)( “So long as a plea is informed and voluntary, we5

will enforce a waiver of appeal.”), cert. denied

, 522 U.S. 1152

(1998). However, even if there is an unconditional plea of guilty

or a waiver of appeal provision in a plea agreement, this Court has

the power to review if the factua l basis for the plea fails to

establish an element of the offense which the defendant pled guilty

to. U nited States v. Spruill

, 292 F.3d 207, 214-15 (5th Cir. 2002)

(vacating sentence because factual basis was not established as to

an element of the charge, that being that predicate order was

issued after a “ hearing” as contemplated by 18 U.S.C. §

922(g)(8)(A)); United States v. White

, 258 F.3d 374, 380, 384 (5th

Cir. 2001) (reversing because bill of information did not establish

the existence of the predicat e offense required for conviction

under 18 U.S.C. § 922(g)(9)); United States v. Johnson

, 194 F.3d

657, 659, 662 (5th Cir. 1999), vacated and remanded

, 530 U.S. 1201

(2000), opinion rein stated with modification , 246 F.3d 749 (5th

Cir. 2001) (reversing because factual basis did not establish that

arson was of church that was used in or affected interstate

commerce, as required under 18 U.S.C. § 844(I)). “ A trial court

cannot enter judgment on a pl ea of guilty unless it is satisfied

that there is a factual basis for the plea.” J ohnson

, 194 F.3d at

659. “The purpose underlying this rule is to protect a defendant

who may plead with an understanding of the nature of the charge,

but ‘without realizing that his conduct does not actually fall

within the definition of the crime charged.’” Id . (citing United6

States v. Oberski

, 734 F.2d 1030, 1031 (5th Cir. 1984) (quoting

United States v. Johnson

, 546 F.2d 1225, 1226-27 (5th Cir. 1977))).

Although Spruill

, White

, and Johnson are not directly

applicable to this case because in those cases either the bill of

information failed to allege a factual element of the crime, or the

defendant brought a motion to dismiss bef ore pleading guilty, or

the plea agreements were conditional, the Court in those cases

allowed the defendants to appeal issues which by the terms of the

parties’ plea agreements were waived. Spruill

, 292 F.3d at 211-12,

215; White

, 258 F.3d at 380; Johnson

, 194 F.3d at 659-60.

Accordingly, Baymon is challenging the sufficiency of the factual

basis for his plea, and we can review despite the waiver. This

Court, however, has not addressed what type of waiver provision, if

any, woul d be sufficient to “accomplish an intelligent waiver of

the right not to [be] prosecuted (and imprisoned) for conduct that

does not violate the law.” S pruill

, 292 F.3d at 215 (citing White

,

258 F.3d at 380) (internal quotations omitted). And it is

unnecessary to do so in this case, because, as we indicate below,

it was not plain error to accept that Baymon was a public official,

a s defined by 18 U.S.C. § 201(a) and, therefore, there was a

sufficient factual basis to support the plea.7

Whether Baymon was a public official so that the factual basis was

sufficient to support his guilty plea to the bribe charges.

This Court needs to determine whether it was error for the

district court to accept Baymon’s plea based on the fact that he

was an employee of the Bureau of Prisons at time of the offense and

he admitted to being a publi c officer. Baymon did not object in

the district court that he was not a “public official.” Therefore,

we apply the plain error standard to his sufficiency challenge, as

the issue is raised for the first time on appeal. U nited States v.

Marek , 238 F.3d 310, 315 (5th Cir. 2001) (en banc), cert. denied

,

122 S. Ct. 37 (2001). Plain error requires Baymon to show “(1) an

error; (2) that is clear or plain; (3) that affects [his]

substantial rights ; and (4) that seriously affects the fairness,

integrity or public reputation of judicial proceedings.” U nite d

States v. Vasquez

, 216 F.3d 456, 459 (5th Cir. 2000). While there

is no controlling authority on point indicating Baymon is clearly

not a “public official” and therefore could establish plain error,

this Court has nonetheless stated in Spruill that the fact that the

particular factual and legal scenario presented does not appear to

have been addressed in any other reported opinion does not preclude

an asserted error from being sufficiently plai n to authorize

reversal. 292 F.3d at 215 n.10. Therefore, we must address who is

a “public official” and find error only if Baymon is plainly not a

“public official.”8

Section 201 defines the term “public official” to include “an

officer or employee or person acting for or on behalf of the United

States, or any department, agency or branch of Government thereof,

. . . in any official function, under or by authority of any such

department, agency, or branch of Government.” 18 U.S.C. §

201(a)(1). The federal bribery statute “has been accurately

characterized as a comprehensive statute applicable to all persons

p erforming activities for or on behalf of the United States,

whatever the form of delegation of authority.” D ixson v. United

States

, 465 U.S. 482, 496 (1984) (internal citations and quotations

omitted).

In United States v. Thomas , this Court held that a privately

employed guard whose employer contracted with the INS to house INS

detainees was a “public official” under § 201, because he performed

the same duties as a federal corrections officer and thus occupied

a position of trust with official federal responsibilities. 240

F.3d 445, 448 (5th Cir.), cert. denied , 532 U.S. 1073 (2001). In

so holding, this Court distinguished Krichman v. United States

, 256

U.S. 363 (1921), in which the Court refused to hold that a baggage

porter who was bribed to deliver furs at a time when the government

had taken possession of the railroad system was a “public

official,” because he w as not acting for the United States in an

official function. T homas

, 240 F.3d at 448 (citing 256 U.S. at

366).9

In this case, the bill of information classifies Baymon as a

“public officer” by virtue of his employment with the Bureau of

Prisons at a federa l correctional facility. R

. at vol. 1, p. 2.

Baymon admitted to being a “public officer.” R. at vol. 2, p. 9.

Baymon agreed with the prosecutor’s Mem orandum of Understanding,

which indicated Baymon was a public official. R. at vol. 2, p. 12-

13. Finally, Baymon states in his brief that he was a “cook

foreman” employed at the Yazoo City Facilty. Brief for Appellant

at 3.

The fact that Baymon was a federal employee with official

functions is sufficient, under the plain error standard, to find he

is a public offi cial. S ee 18 U.S.C. 201(a). Moreover, Baymon’s

case is distinguishable from Kri chman insofar as Baymon was

e mployed by the Bureau of Prisons, which is different from

employment with a private railroad company that was taken over for

a time by the federal government. See Krichman , 256 U.S. at 366.

And, although his position as supervisory cook arguab ly does not

give him the same amount of off icial functions to carry out as a

correctional officer, he nonetheless holds a posi tion with some

degree of responsibility. S ee Thomas

, 240 F.3d at 448. The record

is scant as to Baymon’s responsibilities but the fact that he

violated rules of employment as a federal employee by accepting a

thing of value in exchange for smuggling in contraband and was

therefore released from his employment is suffi cient factual10

support to find, under the plain error standard, that he had

responsibilities which he did not keep. Thus he is not plainly

outside of the definition of “public official.” Therefore, there

was a sufficient factual basis for accepting a guilty plea.

Whether Baymon should have received an adjustment for acceptance of

responsibility

In his plea agreement, Baymon expressly waived appeal of the

“sentence imposed in this case, or the manner in which that

sentence was imposed, on the grounds set forth in Section 3742, or

on any ground whatsoever.” R. at vol. 1, p. 15. A defendant may

waive his statutory right to appeal as part of a vali d plea

agreement if the waiver is made knowingly and voluntarily. United

States v. Melancon

, 972 F.2d 566, 567 (5th Cir. 1992). Any appeal

in contravention of the waiver provision should be dismissed. I d

.

at 568. Under Federal Rule of Criminal Procedure 11(c)(6), the

district court must advise the defendant of "the terms of any

provision in a plea agreement waiving the right to appeal or to

collaterally attack the sentence." Fed. R. Crim. P. 11(c)(6).

In this case, the district court instructed the prosecutor to

inform Baymon of any appeal waiver provision in the plea agreement.

Th e Prosecutor responded that the agreement provided that “the

defendant waive[d] his right t o appeal the conviction and the

sentence imposed in this case on any ground, and he also waives all

post-conviction attacks upon his convict ion or sentence.” R

. at11

v ol. 2, p. 13. Baymon did not argue then, nor does he now, that

the waiver provision was made unknowi ngly or involuntarily;

therefore, he has waived his right to appeal the sentence.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective bri efing, for the reasons set forth above we

conclude that there was no plain error and there was a sufficient

f actual basis to accept Baymon’s plea. Furthermore, Baymon has

waived his appeal as to sentencing. Accordingly, we DISMISS THE

APPEAL as to sentencing, and AFFIRM his conviction.