Conference Calendar UNITED STATES OF AMERICA v. Don Whitley Lively, also known as Don Whitley Liveley

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-10046
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DON WHITLEY LIVELY, also known as Don Whitley Liveley
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:07-CR-41-ALL
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Don Whitley Lively appeals the 71-month sentence imposed following his
guilty plea conviction for possession of a firearm by a convicted felon in violation
of 18 U.S.C. § 922(g)(1). He contends that the district court erred when it
enhanced his sentence pursuant to U.S.S.G. §§ 2K2.1(b)(6) and 3C1.2 because
both enhancements were based on the same conduct.
The Government has filed a motion for summary affirmance arguing that
the appeal is barred by the appellate-waiver provision in Lively’s plea
United States Court of Appeals
Fifth Circuit
F I L E D
October 21, 2008
Charles R. Fulbruge III
Clerk

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No. 08-10046
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agreement. Alternatively, the Government requests an extension of time in
which to file a brief on the merits. Lively has filed a response arguing that
because his appeal is based on the district court’s alleged violation of his
substantive and procedural due process rights, his appeal is not barred by the
appellate-waiver provision.
Our review of the record shows that Lively’s appeal waiver was knowing
and voluntary and that, under the plain language of the plea agreement, the
waiver applies to the circumstances at hand. See United States v. Bond, 414
F.3d 542, 544 (5th Cir. 2005); United States v. McKinney, 406 F.3d 744, 746-47
(5th Cir. 2005). Therefore, Lively’s appeal waiver bars review of the issue he
seeks to raise on appeal.
Accordingly, the district court’s judgment is AFFIRMED, the
Government’s motion for summary affirmance is GRANTED, and the
Government’s motion for an extension of time is DENIED.

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