The opinion
Case: 12-60125 Document: 00511968549 Page: 1 Date Filed: 08/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2012
No. 12-60125 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JETHRO BROWN,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:10-CR-102-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jethro Brown pleaded guilty to conspiracy to possess a controlled
substance, was sentenced to 280 months in prison, and now appeals that
sentence. The Government has moved to dismiss the appeal because, as part of
his plea agreement, Brown expressly waived his right to appeal his conviction
and sentence. We grant the motion and dismiss the appeal.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-60125 Document: 00511968549 Page: 2 Date Filed: 08/24/2012
No. 12-60125
“A defendant may waive his statutory right to appeal if the waiver is
knowing and voluntary.”1 The district court questioned Brown about whether
he understood the plea agreement and had discussed it with counsel. The court
specifically asked Brown if he understood he was giving up his right to appeal.
Brown said he understood and entered a guilty plea.
Brown now argues that he could not fully appreciate the terms of his plea.
Brown told the district court his education stopped in eighth grade and he was
a slow reader, but he confirmed he understood the English language and the
purpose of the proceedings. There is no indication in the record that he did not
comprehend the agreement or the explicit waiver of appeal. Because Brown
“indicated that he had read and understood the plea agreement, which includes
an explicit, unambiguous waiver of appeal, the waiver was both knowing and
voluntary,”2 and the waiver is therefore valid.
Brown also contends he had ineffective assistance of counsel in connection
with his sentencing. “[T]he general rule in this circuit is that a claim for
ineffective assistance of counsel cannot be resolved on direct appeal when the
claim has not been raised before the district court since no opportunity existed
to develop the record on the merits of the allegations.”3 Brown’s claim was not
raised below, so we decline to consider it now.
* * *
IT IS ORDERED that appellee’s motion to dismiss the appeal is
GRANTED. IT IS FURTHER ORDERED that appellee’s alternative motion for
summary affirmance is DENIED AS MOOT.
1
United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
2
Id.
3
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (alteration in original)
(quoting United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992)).
2