UNITED STATES v. NEVERS (2019)

Shawanda Nevers appeals her four consecutive 21-month prison sentences arising from her guilty-plea conviction on four counts of aiding the presentation of a false income tax return. Nevers contends that she is entitled to resentencing because the district court plainly erred in determining the tax loss amount on which her guidelines sentence was based. While the Government asserts that Nevers’s appeal is barred by the appeal waiver in her plea agreement, Nevers argues that the waiver is unenforceable because her guilty plea was unknowing given that the district court failed to properly inform her that she faced a maximum prison sentence of 12 years should the terms run consecutively.

We normally review the validity of a guilty plea de novo. United States v. Hernandez, 234 F.3d 252, 254 (5th Cir. 2000). However, where, as here, a defendant fails to lodge an objection concerning his plea in the district court, we apply a plain error analysis. United States v. Brown, 328 F.3d 787, 789 (5th Cir. 2003). While Nevers contests the applicability of the plain error standard to this issue, her challenge to the knowing nature of her guilty plea fails under even the de novo standard, as discussed below.

A knowing and voluntary guilty plea is required for an enforceable waiver of appeal. United States v. Dees, 125 F.3d 261, 269 (5th Cir. 1997). “To enter a knowing and voluntary guilty plea, the defendant must have a full understanding of what the plea connotes and of its consequence.” United States v. Urias-Marrufo, 744 F.3d 361, 366 (5th Cir. 2014) (internal quotation marks and citation omitted). With respect to potential confinement, the defendant need only know the statutory maximum prison term for the charged offenses. United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996); United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990); see also Fed. R. Crim. P. 11(b)(1)(H).

As Nevers acknowledges, the district court accurately informed her at rearraignment that three years was “the maximum possible sentence that could be imposed on [her] in the event of a conviction with respect to each of” the four counts of conviction. See 26 U.S.C. § 7206(2). Under 18 U.S.C. § 3584(a), a district court generally has discretion to order that multiple prison terms run consecutively, and we have “conclude[d] that the effect of [§ 3584] is not a consequence of which a defendant must be advised before a guilty plea may be accepted.” Hernandez, 234 F.3d at 256.

In light of the foregoing, Nevers’s guilty plea was knowing and voluntary, and her appeal waiver is enforceable. See Dees, 125 F.3d at 269. The appeal is DISMISSED.

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PER CURIAM: * FN* 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.