United States v. Shelton

* 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this opinion should not be published and is not precedent except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
June 8, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40745
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNELL SHELTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:05-CR-135-2)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Arnell Shelton appeals the 36-month
sentence that was imposed on him following his guilty plea
conviction for assaulting a federal corrections officer. Shelton
contends that the waiver of appeal contained in his plea agreement
does not bar the instant appeal, because the government breached
the agreement by advocating an upward departure. Shelton also
contends that the district court erred by failing to give notice of
its intent to depart upwardly, as required by FED. R. CRIM. P.
32(h). The government seeks to enforce the appeal waiver.

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2
As the government’s conduct was consistent with the parties’
reasonable understanding of the plea agreement, the agreement was
not breached. See United States v. Munoz, 408 F.3d 222, 226 (5th
Cir. 2005). As Shelton’s appeal waiver was knowing and voluntary,
the waiver is enforced. See United States v. Melancon, 972 F.2d
566, 567-68 (5th Cir. 1992). We do not, therefore, address the
merits of Shelton’s argument regarding the district court’s failure
to provide notice of its intent to depart upwardly from the
Sentencing Guidelines. The judgment of the district court is, in
all respects,
AFFIRMED.

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