United States v. Berger

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
January 10, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20356
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALAN WADE BERGER,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-306–1
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alan Wade Berger appeals his guilty-plea conviction for using
means of interstate commerce to persuade a minor to engage in
sexual activity, a violation of 18 U.S.C. § 2422(b). Berger
received a mandatory minimum prison term of five years. He now
argues that his guilty plea was involuntary and unknowing for two
reasons: (1) at rearraignment, the district court failed to inform
him about a possible increase to his base offense level under
U.S.S.G. § 2A3.2(b)(2), a warning allegedly required by Blakely v.

-- 1 of 3 --

No. 04-20356
-2-
Washington, 124 S. Ct. 2531 (2004); and (2) he was not clearly or
adequately informed that he was facing a five-year mandatory
minimum prison term.
The Government contends that Berger’s only timely notices of
appeal were inadequate to preserve a challenge to his conviction
because they designated only the sentence and Berger’s “Motion to
Demand Specific Performance.” Although FED. R. APP. P. 3(c)(1)(B)
requires an appellant to “designate [in his notice of appeal]
the judgment, order, or part thereof being appealed,” this court
has “consistently given a liberal interpretation to this
requirement.” United States v. Knowles, 29 F.3d 947, 949 (5th Cir.
1994). Both of Berger’s timely notices of appeal were adequate to
“exhibit an intent to appeal” the validity of his guilty plea. See
id. at 950.
The Government also argues that, as part of his plea
agreement, Berger validly waived his right to appeal. A defendant
may waive his right to appeal as part of a valid plea agreement if
the waiver is knowing and voluntary. United States v. Robinson,
187 F.3d 516, 517 (5th Cir. 1999). Berger does not explicitly
challenge the validity of the waiver provision itself, but such a
provision will be enforced only “[s]o long as [the] plea [itself]
is informed and voluntary.” See United States v. Dees, 125 F.3d
261, 269 (5th Cir. 1997); see also United States v. Wenger, 58 F.3d
280, 282 (7th Cir. 1995). Accordingly, we first address Berger’s
substantive challenge to the validity of his guilty plea in order

-- 2 of 3 --

No. 04-20356
-3-
to reach the threshold issue of whether the waiver provision was
enforceable. See, e.g., United States v. Brown, 328 F.3d 787, 789-
90 (5th Cir. 2003).
Berger’s challenges to the validity of his plea are
unavailing. First, contrary to Berger’s contention, Blakely did
not require his indictment to charge or the district court to warn
him that he faced an offense-level increase under the Sentencing
Guidelines. See United States v. Pineiro, 377 F.3d 464, 465 (5th
Cir. 2004) (holding that Blakely does not apply to the federal
guidelines), petition for cert. filed, (U.S. July 14, 2004) (No.
04-5263). Second, Berger’s signed plea agreement and rearraignment
transcript reflect that Berger was adequately and clearly informed
that he faced a mandatory minimum prison term of five years.
See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); United States
v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000); FED. R. CRIM. P.
11(b)(1)(I).
Because Berger’s guilty-plea was voluntarily and knowingly
entered, his waiver of his right to appeal was enforceable.
Accordingly, we DISMISS the appeal.
APPEAL DISMISSED.

-- 3 of 3 --