IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 92-1187 ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CYNTHIA BATY,

Defendant-Appellant.

__________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas __________________________________________________________________ (December 23, 1992)

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, Cynthia Baty challenges the sentence the

district court gave her for escaping from federal custody. First,

the government argues that Baty cannot bring this appeal because,

as a term of her plea agreement, she waived her right to appeal

from her guilty plea and sentence. The government's fall-back

argument is simply that the district court did not err in denying

a downward departure to her sentence for acceptance of

responsiblity. We hold that Baty has the right to appeal her

sentence because she did not knowingly and voluntarily waive her

right to appeal. We affirm the judgment of the district court, however, because the district court did not err when it sentenced

Baty.

I

Cynthia Baty was originally convicted on December 19, 1986, of

possessing amphetamine with the intent to distribute it in

violation of

(a)(1). The district court sentenced

Baty to three years incarceration with a special parole term of

three years. The government paroled Baty, but she violated the

terms of her parole and the district court ordered her to the

Federal Prison Camp in Bryan, Texas.

In January 1991, the government again paroled Baty and

transferred her to the Volunteers of America Halfway House in

Hutchins, Texas. On March 26, 1991, Baty left the halfway house

without authorization. When she failed to return, the government

placed her on escape status. Six months later, a Dallas police

officer apprehended Baty during a routine traffic stop. In October

of 1991, the government indicted Baty for escaping from federal

custody in violation of

(a). Baty pled guilty on

December 11, 1991.

At the sentencing hearing, Baty requested a two-point downward

adjustment in her base offense level because she had accepted

responsibility for her escape. The district court denied Baty the

downward adjustment because the court concluded that Baty did not

accept responsibility for her escape. In reaching this decision,

the district court relied on the fact that Baty had escaped from

-2- prison, had remained a fugitive for six months, and had not

voluntarily surrendered to authorities. As a result of these

findings, the district court sentenced Baty to twenty-one months of

incarceration. Baty appeals her sentence.

II

The government contends that Baty waived her right to appeal

in the plea agreement. Paragraph eight provided that:

Baty waives any right to pursue any post-conviction writs or appeals concerning any matters that Baty has asserted or could assert to this prosecution or to the Court's entry of Judgment.

In a recent opinion, we held that a defendant can "waive his right

to appeal as part of a plea agreement." United States v. Melancon,

(5th Cir. 1992).1 However, we also recognized

that "the waiver must be informed and voluntary."

In the instant case, it is clear to us that Baty did not

knowingly waive her right to appeal. On more than one occasion,

Baty specifically asked the court to explain paragraph eight of the

plea agreement. Not knowing what was in paragraph eight, the court

asked the attorneys present about it. Mr. Snipes, the United

States Attorney, responded that the provision "provides that the

defendant waives her appeal right basically on conviction." Ms.

Coffee, Baty's attorney, told the court that she had asked the

United States Attorney to delete the paragraph, but he refused.

1 See also United States v. Marin,

(4th Cir. 1992); United States v. Bolinger,

(9th Cir. 1991); United States v. Rutan,

(8th Cir. 1992).

-3- She then told the court that she "explained to my client as best I

could how I reviewed her choices." The court then told Baty that:

In other words, Ms. Baty, that is part of what the government wants in the agreement, otherwise there is no agreement. And if there is no agreement, then you just have a decision to make and that is, [do] you want to plead guilty with that in there or [do] you want to go ahead and have a trial.

Baty decided to plead guilty without any further explanation of the

waiver of her right to appeal.

Thus, there was no satisfactory explanation to Baty of the

consequences of her waiver of her right to appeal.2 A defendant's

waiver of her right to appeal is not informed if the defendant does

not know the possible consequences of her decision.

We think that a defendant's waiver of her right to appeal

deserves and, indeed, requires the special attention of the

district court. When a defendant waives her right to appeal, she

gives up the very valuable right to correct a district court's

unknown and unannounced sentence. After waiving her right to

appeal, the district court could err in its application of the

Sentencing Guidelines or otherwise impose an illegal sentence.

2 The record suggests that the Judge Solis was also unsure about the consequences of the defendant's waiver of her right to appeal. After sentencing Baty, Judge Solis told her:

I advise you that you have the right to appeal this case, my sentence, if you wish to appeal that. And you also have the right to file for a free appeal, free of cost in attorneys if you are unable to afford the cost of the appeal. Talk to Ms. Coffee about that, [and] advise me of your decision on that.

-4- Indeed, the defendant may find herself serving unnecessary jail

time. Yet, the defendant, who has waived her right to appeal,

cannot appeal these errors. It is up to the district court to

insure that the defendant fully understands her right to appeal and

the consequences of waiving that right. In this case, Baty never

understood the consequences of waiving her right to appeal, and

thus, the waiver was not effective.

III

We now turn to the substance of Baty's appeal. She contends

that the district court erred when it denied her the two-point

reduction in her base offense level for accepting responsibility

for her criminal conduct. The sentencing guidelines provide that:

(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by two levels. * * * * (c) A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right.

United States Sentencing Commission, Guidelines Manual, § 3E1.1.

Our review of the district court's determination that Baty is not

entitled to the reduction is "even more deferential than a pure

clearly erroneous standard." United States v. Kinder,

(5th Cir. 1991) (quoting United States v. Fabregat,

(5th Cir. 1990)). Furthermore, as the defendant,

Baty had the burden of proving that she was entitled to the

-5- reduction in her base offense level. United States v. McDonald,

(5th Cir. 1992).

The only evidence that Baty offered to prove that she accepted

responsibility for her criminal conduct was her guilty plea. Under

the guidelines, however, Baty is not entitled to the adjustment

simply because she pleaded guilty. United States v. Hardeman,

(5th Cir. 1991). On appeal, instead of arguing that

she had evidence indicating that she had accepted responsibility

for her conduct, Baty argues that the district court erred in

relying on factors that the sentencing commission had already

considered. See Williams v. United States,

,

(1992).3 In rejecting a downward departure for acceptance,

the district court relied on the fact that Baty did not voluntarily

surrender herself to authorities and remained a fugitive for six

months. The district court was fully justified in using these

facts to discredit a mere assertion of entitlement to the reduction

and further to deny Baty the two-point adjustment. See United

States v. Ainsworth,

(5th Cir. 1991) (The

defendant's efforts to evade the police justified the district

court's decision to deny the defendant the adjustment).

Furthermore, despite Baty's arguments, the sentencing commission

3 Baty also contends that the district court erred when it found that certain hearsay statements in her pre-sentence report were relevant in sentencing her. This argument is frivolous because the district court explicitly told Baty that it was not relying on any of the hearsay statements in the pre-sentence report when it sentenced her.

-6- had not already considered the time she remained a fugitive or

whether she voluntarily surrendered herself when they determined

the base offense level for her offense. Thus, the district court

did not err when it denied Baty the adjustment for acceptance of

responsibility.

IV

To sum up, we hold that Baty did not effectively waive her

right to appeal because she did not understand the consequences of

the waiver when she pled guilty. However, we AFFIRM the district

court's sentence because it did not err when it denied Baty the

two-point reduction in her base offense level for accepting

responsibility for her actions.

A F F I R M E D.

-7-