                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                      UNITED STATES COURT OF APPEALS
                           for the Fifth Circuit                     December 22, 2005

                            _____________________                  Charles R. Fulbruge III
                                                                           Clerk
                                No. 04-60320
                      consolidated with No. 04-60331
                           _____________________



                        UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    VERSUS

                                DAVID WALLACE

                                                      Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
_________________________________________________________________
                           (2:01-CR-8-2)

Before JONES, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Appellant David Wallace was indicted on April 3, 2001 for

possession of counterfeit currency in violation of 18 U.S.C. § 472.

He was released on bail, and he subsequently absconded and failed

to appear for his change of plea hearing. On April 10, 2003,

Wallace was apprehended while robbing a bank, and he was indicted

two   weeks   later   for   bank   robbery   in   violation   of    18   U.S.C.

§ 2113(a) and (d), brandishing a firearm during and in relation to


      *
      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this opinion should not be published and is not precedent except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.
the robbery in violation of 18 U.S.C. § 924(c)(1), and aiding and

abetting with respect to both charges in violation of 18 U.S.C.

§ 2. The aiding and abetting charges were later dropped.

     After originally pleading not guilty to the charges against

him, Wallace agreed to plead guilty to both indictments pursuant to

the terms of a written Memorandum of Understanding (“MOU”). The MOU

provided that if Wallace plead guilty to all three counts contained

in the two indictments, the Government would recommend a sentence

in the lower ten percent of the sentencing range calculated by the

court for the counterfeiting and bank robbery charges. It further

provided that the Government would recommend an additional one-

level downward adjustment for acceptance of responsibility should

Wallace otherwise qualify for a two-level downward adjustment for

acceptance of responsibility on the bank robbery charge. The MOU

also contained a waiver of the right to appeal the sentence or

contest   the   conviction   or   sentence   in   any   post-conviction

proceeding under 28 U.S.C. § 2255, a merger provision indicating

that there were no promises external to the plea agreement, and a

statement that the defendant expressly acknowledged “no reliance

upon anyone’s calculation of a particular guideline range for the

offenses constituting [the] plea.”

     On October 29, 2003, the district court judge read Wallace the

requisite plea admonishments before accepting his guilty plea as to




                                   2
both       indictments.1    Sentencing       was   set   for      early   2004.   At

sentencing, there was a discussion regarding whether Wallace was

eligible for a downward adjustment for acceptance of responsibility

on the bank robbery charge.2 The district court agreed with the

recommendation of the presentence report (“PSR”) and the probation

officer that U.S.S.G. § 1B1.1’s grouping requirement had the effect

of preventing the court from giving Wallace any downward adjustment

for        acceptance      of   responsibility           absent      extraordinary

circumstances. The court stated that it did not find extraordinary

circumstances in Wallace’s case and refused to accept defense

counsel’s argument that it should group the charges in the way

defense counsel and the U.S. Attorney had when estimating Wallace’s

offense level during plea bargaining, a grouping that would have

allowed      a   three-level    downward      adjustment    for     acceptance    of

responsibility. The U.S. Attorney conceded that the Government had

thought the defendant would get a downward adjustment, stating “I

would have to defer to probation as for what is the required way.


       1
       Specifically, the judge asked Wallace (1) whether he
understood that it was the judge who would determine what the
appropriate sentencing guideline was, regardless of what
Wallace’s attorney or the Government might have told him; and (2)
whether he understood that a defendant normally has a right to
appeal and that under the terms of the plea agreement Wallace was
giving up that right. Wallace answered both questions in the
affirmative. The judge also asked Wallace whether there were any
side agreements or promises made that were not contained in the
plea agreement, to which Wallace responded no.
     2
       Wallace had already conceded that he was not eligible for a
downward adjustment on the counterfeiting charge because he had
absconded after the court released him on bail.

                                         3
Although it was an inducement to [Wallace], I’m sure, to enter his

plea that he thought that he was going to get that three levels on

the bank robbery.” After hearing Wallace’s final statement — during

which     Wallace    complained       that    he        thought   acceptance       of

responsibility was automatic and asked to withdraw his guilty plea

—   the   court   reminded    Wallace    that    when      he   plead   guilty,    he

acknowledged that it was the judge who would determine his sentence

under     the   guidelines.    The    court     then      sentenced     Wallace    to

concurrent      sixty-five    month     terms      of    imprisonment     for     the

counterfeiting and bank robbery charges and a consecutive eighty-

four month term of imprisonment for the brandishing a firearm

charge. Final judgment was entered and Wallace timely appealed and

moved for consolidation of the cases.

      This Court granted Wallace’s motion for consolidation and now

considers the three interrelated issues on appeal: (1) whether the

waiver of appeal in the plea agreement should be enforced; (2)

whether Appellant-Wallace was induced to change his plea from not

guilty to guilty by promises made outside of the plea agreement

such that the district court erred in refusing to allow Wallace to

withdraw his guilty plea; and (3) whether Booker/Fanfan should

allow reversal for resentencing. For the reasons stated below, we

DISMISS Wallace’s appeal.

                                        I.

      The Government asks us to dismiss this appeal because of the

waiver provision in the plea agreement. Whether a defendant’s

                                        4
waiver of appeal should be enforced is a question of law. Questions

of law are reviewed de novo. United States v. Farmigoni, 934 F.2d

63, 65 (5th Cir. 1991). This Court will enforce a waiver when a

defendant knowingly and voluntarily waives his right to appeal. See

United States v. Baymon, 312 F.3d 725, 726 (5th Cir. 2002); United

States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001); United

States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). However, if

the Government has breached or elected to void a plea agreement,

“the defendant is necessarily released from an appeal waiver

provision contained therein.” United States v. Gonzalez, 309 F.3d

882, 886 (5th Cir. 2002). Because the record indicates that Wallace

knowingly and voluntarily waived his right to appeal, resolution of

this issue turns on whether, as Wallace contends, the Government

breached the plea agreement by failing to keep promises made in

association with it, as discussed below.

     Wallace’s main argument on appeal is that the district court

erred in refusing to allow him to withdraw his guilty plea because

he was induced into pleading guilty by promises made outside of the

plea agreement that he would automatically, by virtue of pleading

guilty, receive a three-level downward adjustment for acceptance of

responsibility.3 Wallace did not make this objection in district

court; therefore, we review for plain error. United States v.


     3
      Wallace does not argue that the written terms of the plea
agreement were breached, just promises made in association with
the plea agreement.

                                5
Munoz, 408 F.3d 222, 226 (5th Cir. 2005); United States v. Brown,

328 F.3d 787, 790 (5th Cir. 2003). Although Wallace is correct that

“evidence     of    discussions       surrounding       the     negotiations      of   the

written agreement may establish the existence of a promise,” which

if not kept, may give rise to a breach, United States v. Kirk, 70

F.3d 791, 793 (5th Cir. 1995), the record contains no evidence of

a   promise   that        Wallace    would    receive      a    three-point      downward

adjustment,        and    Wallace’s    testimony      at       the   Rule   11   hearing,

together with the written plea agreement, indicate that no such

promise was made,          United States v. Corbett, 742 F.2d 173, 175-77

(5th Cir. 1984). Accordingly, the district court did not commit

error, plain or otherwise, in refusing to allow Wallace to withdraw

his guilty plea, Corbett, 742 F.2d at 175-77, and because we find

that neither the written terms of nor any promises external to the

plea agreement were breached, we will enforce the waiver of appeal

provision in that document.

      Finally,      Wallace        argues    that   because      the   district     court

applied the sentencing guidelines in a mandatory fashion when

determining the adjustment for acceptance of responsibility, this

Court   should           reverse     and     remand     for      resentencing       under

Booker/Fanfan. Because Wallace is bound by the waiver of appeal in

his plea agreement, as discussed above, we do not have jurisdiction

to consider this issue. United States v. Burns, No. 04-11357, ___

F.3d ___, 2005 WL 3388548, at *7 (5th Cir. Dec. 13, 2005).

                                             II.

                                              6
Accordingly, Wallace’s appeal is DIMISSED.




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