IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 19-10988

UNITED STATES OF AMERICA,
Plaintiff-Appellee

v.

TESA KEITH,
Defendant-Appellant
___________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
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UNITED STATES’ OPPOSED MOTION TO DISMISS APPEAL OR, ALTERNATIVELY, FOR AN UNOPPOSED EXTENSION OF TIME
TO FILE ITS BRIEF AS APPELLEE
___________________
The government moves for dismissal of defendant-appellant Tesa Keith’s appeal. The government charged Keith, a former state employee of the San Angelo State Supported Living Center (the Center), with violating 18 U.S.C. 242 after she kicked a resident at the Center in the head, injuring the resident. Keith pleaded guilty to this charge and entered into a written agreement in which she expressly waived the right to challenge on appeal the constitutionality of Section 242. Notwithstanding that waiver, Keith now argues for the first time on appeal

 

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that Section 242 exceeds Congress’s powers under the Fourteenth Amendment because, in her view, the statute’s “under color of law” element could sweep in the conduct of “private individuals, who are not government officials at all.” Br. 6-7.¹ For reasons explained below, this Court should dismiss Keith’s appeal.

If the Court denies this motion, the government requests an extension of 30 days from the date of denial to file a brief on the merits. Keith is opposed to dismissal, and intends to file a response, but unopposed to the alternative request for an extension of time.

BACKGROUND

The Center is a residential facility operated by the State of Texas that “serve[s] people with intellectual and developmental disabilities who are medically fragile or who have behavioral problems.” ROA.106. On June 13, 2017, Keith, then-employed as a Direct Service Provider at the Center, had an altercation with a resident at the facility. ROA.10, 107. During the altercation, Keith kicked the resident in the face, leaving the resident’s face and head bloodied and bruised. ROA.10, 107.

On April 19, 2019, the government charged Keith with a single count of deprivation of rights under color law under 18 U.S.C. 242. ROA.10. On May 1,

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¹ “Br. ___” refers to the page numbers in Keith’s opening brief. “ROA.___” refers to the page numbers of the Record on Appeal.

 

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2019, Keith pleaded guilty to violating Section 242. ROA. 48-61; see also ROA.92-99 (attached as Attachment A). Under the plea agreement, Keith waived her rights to “appeal the conviction, sentence, fine and order of restitution or forfeiture”; “contest the conviction, sentence, fine and order of restitution or forfeiture in any collateral proceeding”; and to raise “any argument that (1) the statutes to which [she] is pleading guilty are unconstitutional and (2) the admitted conduct does not fall within the scope of the statute of conviction.” ROA.96-97. The only exceptions to the waiver were for “a sentence exceeding the statutory maximum punishment,” “an arithmetic error at sentencing,” a “challenge [to] the voluntariness of the * * * plea of guilty or [the] waiver,” and “a claim of ineffective assistance of counsel.” ROA.96-97.

The district court held a plea colloquy in which it reviewed with Keith and her attorney the terms of the plea agreement, including the waiver of appellate rights. ROA.59. After the colloquy, the district court found that Keith was “fully competent and capable of entering an informed plea” and that “her plea of guilty * * * [was] a knowing and voluntary plea.” ROA.59; see also ROA.97 (stating that Keith’s “knowing and voluntary waiver of the right to appeal” includes “waiving the right” to challenge the constitutionality of Section 242).

On August 23, 2019, the district court sentenced Keith to 51 months’ imprisonment followed by three years of supervised release. ROA.81-82.

 

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ARGUMENT

A. Keith’s Appeal Must Be Dismissed Because She Expressly Waived Her Right To Challenge On Appeal The Constitutionality Of Section 242, And That Waiver Is Valid And Enforceable

This Court conducts a two-step inquiry to determine whether an appeal is barred by an appellate waiver. The Court asks whether the waiver “(1) was knowing and voluntary and (2) applies to the circumstances at hand, based on the plain language of the agreement.” United States v. Purser, 747 F.3d 284, 289 n.10 (5th Cir.), cert. denied, 574 U.S. 960 (2014). Whether an appellate waiver is valid is a question of law, reviewed de novo. United States v. Rodriguez-Estrada, 741 F.3d 648, 650 (5th Cir. 2014).

“To be valid, a defendant’s waiver of his right to appeal must be informed and voluntary.” United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). When the record shows that the defendant “read and understood the plea agreement, which included a clear waiver of appellate rights, and acknowledged that he understood specifically that he was giving up his appellate rights, his waiver was both knowing and voluntary.” United States v. Sanchez Guerrero, 546 F.3d 328, 335 (5th Cir. 2008), cert. denied, 556 U.S. 1172 (2009). In addition, “[i]f the district court accurately explains the terms and consequences of the waiver of appeal and the defendant states on the record that he understands them,” then this

 

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Court will uphold the waiver as valid and enforceable and dismiss the defendant’s appeal. United States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011).

Keith concedes that she waived her right to appeal her conviction as part of her plea agreement and does not argue that her waiver was unknowing or involuntary. As relevant here, Keith expressly waived “the right to raise on appeal or on collateral review any argument that * * * the statutes to which the defendant is pleading guilty are unconstitutional.” ROA.97. That language plainly applies to Keith’s argument that Section 242 exceeds Congress’s authority under the Fourteenth Amendment. See Br. 6-7. Moreover, the record shows that when Keith pleaded guilty, the district court reviewed with her the terms of the plea agreement, including the waiver of appellate rights. ROA.53-54, 56-59. Keith acknowledged under oath that she understood the consequences of entering into the plea agreement and that she was waiving her right to appeal. ROA.53-54, 58-59. She also informed the district court that she had an opportunity to discuss her case and the plea agreement with her lawyer. ROA.54. She did not raise any questions about the plea agreement or the appellate waiver to the district court. ROA.48-61, 62-86. Based on these representations and the absence of any questions from Keith, the district court found that Keith knowingly and voluntarily entered into the plea agreement, including the terms of the appellate waiver. ROA.59.

 

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Because the record shows that Keith expressly waived her right to challenge on appeal the constitutionality of Section 242, and because the record shows that she understood those terms, this Court should dismiss Keith’s appeal. See Jacobs, 635 F.3d at 783-784.

B. Class v. United States Does Not Control This Case

Keith suggests that under Class v. United States, 138 S. Ct. 798 (2018), this Court may ignore her waiver of appellate rights and entertain her constitutional challenge to Section 242. See Br. 4-5. For two reasons, that is incorrect.

First, this case is distinguishable from Class because, as set forth above, Keith expressly waived her right to challenge on appeal the constitutionality of Section 242. In Class, the Supreme Court held that “a guilty plea by itself” does not “bar[] a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal.” 138 S. Ct. at 803 (emphasis added). The defendant in Class was charged with illegally carrying a firearm on the grounds of the United States Capitol. Id. at 802. He sought to dismiss the indictment, arguing that the statute under which he was charged was unconstitutional. Ibid. The district court denied his motion, and the defendant ultimately entered into a written plea agreement that waived a number of appellate rights and preserved several others. Ibid. The agreement, however, was silent on “the right to raise on direct appeal a claim that the statute of conviction was unconstitutional.” Ibid. The

 

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Supreme Court concluded that such silence did not did not suffice to “relinquish [Class’s] right to appeal the District Court’s constitutional determinations.” Id. at 803. Class does not control here because, unlike in that case, Keith’s plea agreement is not silent about her ability to raise constitutional claims on appeal. Compare ROA.97 (stating that Keith waives on appeal “any argument that [Section 242] [is] unconstitutional”), with Class, 138 S. Ct. at 802 (explaining that, in Class, “[t]he agreement said nothing about the right to raise on direct appeal a claim that the statute of conviction was unconstitutional”). On the contrary, Keith’s plea agreement contained an express waiver of her right to challenge on appeal the constitutionality of Section 242. ROA.97.

Second, even if Keith had not expressly waived her right to challenge the constitutionality of Section 242 on appeal, Class makes clear that Keith’s claim is nonetheless barred because that claim is “foreclosed by the admissions inherent in [her] guilty plea[].” 138 S. Ct. at 804 (quoting United States v. Broce, 488 U.S. 563, 576 (1989)). The Court in Class permitted the defendant to challenge his statute of conviction only because he could do so without “contradict[ing] the terms of the indictment or the written plea agreement.” Ibid. The Court distinguished Class’s case from its previous decision in Broce, where it found that the defendants were barred from pursuing a double jeopardy challenge on appeal as a result of pleading guilty to two separate indictments alleging two separate

 

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conspiracies. See ibid. Similarly, here, Keith contends that Section 242 exceeds Congress’s authority under the Fourteenth Amendment because the statute’s “under color of law” element could sweep in the conduct of private individuals who are not state actors. See Br. 3, 6-7. But in pleading guilty, Keith admitted that, at the time of the offense, she was a state actor. ROA.17-19 (factual resume in which Keith stipulates she “act[ed] under color of law”); ROA.55-56 (representation by Keith during plea colloquy that “all of the facts” in the factual resume are true). Because a defendant to whom a statute has been constitutionally applied lacks standing to attack a statute by arguing that it may be unconstitutionally applied to others, see, e.g., Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38 (1999), Keith’s admission that she was a state actor at the time of the offense forecloses any constitutional challenge to Section 242 on appeal. See also United States v. Robinson, 367 F.3d 278, 290 (5th Cir.), cert. denied, 543 U.S. 1005 (2004). Thus, unlike in Class, Keith’s constitutional claim would not “extinguish the government’s power to ‘constitutionally prosecute’ [her] if the claim were successful.” 138 S. Ct. at 806 (internal quotation marks omitted) (quoting Broce, 488 U.S. at 575).

Accordingly, Class does not affect the valid appellate waiver in this case.

 

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CONCLUSION

This Court should dismiss the appeal. Should the Court deny the motion, the government requests an extension of time of 30 days from the date of denial to respond to Keith’s brief.

Respectfully submitted,

ERIC S. DREIBAND
Assistant Attorney General

ALEXANDER V. MAUGERI
Deputy Assistant Attorney General

s/ Junis L.  Baldon  

TOVAH R. CALDERON
JUNIS L. BALDON

Attorneys

Department of Justice

Civil Rights Division

Appellate Section

Ben Franklin Station
P.O. Box 14403
Washington, D.C. 20044-4403

(202) 305-1806
 

 

CERTIFICATE OF SERVICE

I certify that on December 19, 2019, I electronically filed the foregoing UNITED STATES’ OPPOSED MOTION TO DISMISS APPEAL OR, ALTERNATIVELY, FOR AN UNOPPOSED EXTENSION OF TIME TO FILE ITS BRIEF AS APPELLEE with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit using the appellate CM/ECF system.

I further certified that all parties are CM/ECF registered, and service will be accomplished by the appellate CM/ECF system.

 

s/ Junis L. Baldon

JUNIS L. BALDON

Attorney

 

CERTIFICATE OF COMPLIANCE

I certify that the attached UNITED STATES’ OPPOSED MOTION TO DISMISS APPEAL OR, ALTERNATIVELY, FOR AN UNOPPOSED EXTENSION OF TIME TO FILE ITS BRIEF AS APPELLEE:

(1) complies with the type-volume limitation in Federal Rule of Appellate Procedure 27(d)(2)(A) because it contains 1775 words; and

(2) complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Word 2016, in 14-point Times New Roman font.

 

s/ Junis L. Baldon

JUNIS L. BALDON

Attorney

Date: December 19, 2019

 

Attachment A