United States v. Goodwin

Case: 23-20455 Document: 66-1 Page: 1 Date Filed: 06/21/2024

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals

Fifth Circuit ____________ FILED

June 21, 2024 No. 23-20455 Lyle W. Cayce Summary Calendar Clerk

____________

United States of America,

Plaintiff—Appellee, versus

Michael Goodwin,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CR-719-4

______________________________

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam: *

Michael Goodwin appeals his 324-month sentence for conspiracy to advertise child pornography. He urges that the district court erred in apply- ing a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) based on his distribution of child pornography in exchange for valuable consideration.

The government maintains that Goodwin knowingly and voluntarily Case: 23-20455 Document: 66-1 Page: 2 Date Filed: 06/21/2024

No. 23-20455 waived his right to appeal, and it seeks to enforce the appeal waiver. In re- sponse, Goodwin avers that the court should adopt and apply a miscarriage- of-justice exception to the appeal waiver. The government replies that this court has not adopted a miscarriage-of-justice exception to appeal waivers and, even if it did, it would not apply to Goodwin’s standard sentencing challenge.

“This court reviews de novo whether an appeal waiver bars an appeal.” United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). A defen- dant may waive his statutory right to appeal if the waiver (1) is knowingly and voluntarily entered and (2) “applies to the circumstances at hand, based on the plain language of the [plea] agreement.” United States v. Higgins, 739 F.3d 733, 736 (5th Cir. 2014).

The record indicates Goodwin’s waiver of his appellate rights was knowing and voluntary, and therefore, the appeal waiver is valid and enforce- able. See Higgins, 739 F.3d at 736–37; see also United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Further, the record indicates that the appeal waiver “applies to the circumstances at hand, based on the plain lan- guage of the plea agreement.” Higgins, 739 F.3d at 736. Although Goodwin reserved the right to raise a claim of ineffective assistance, he brings a sen- tencing issue, which does not fall within the exception to the appeal waiver. Although some other circuit courts have recognized the possibility of a miscarriage-of-justice exception to appeal waivers, this court has “declined to explicitly either adopt or reject” it. United States v. Barnes, 953 F.3d 383, 389 (5th Cir. 2020).

Accordingly, Goodwin’s enforceable appeal waiver bars this appeal. See Higgins, 739 F.3d at 736–37; see also McKinney, 406 F.3d at 746. The motion to dismiss is GRANTED, and the appeal is DISMISSED.