UNITED STATES of America, Plaintiff-Appellee v. Richard Stephen BELLOCK, Defendant-Appellant, 590 F. App'x 432

PER CURIAM: Richard Stephen Belloek challenges the seventy-month sentence he received following his guilty plea conviction for conspiracy to defraud the Department of Defense. He asserts that the district court erred in imposing a ten-level sentencing enhancement after determining that the applicable loss amount was $169,602.54. Belloek also contends that the district court erred in applying sentencing enhancements for the unlawful use of identification, the number of victims, a leadership role, and obstruction of justice.

As part of Bellock’s plea agreement, Belloek agreed to waive his “right to appeal the conviction and sentence imposed in this ease, or the manner in which that sentence was imposed, on the grounds set forth in Title 18, United States Code,

Section 8742, or on any ground whatsoever.” Relying on the appellate waiver in the plea agreement, the Government seeks dismissal of the appeal or, alternatively,

summary affirmance of the district court’s judgment. Belloek contends that the waiver does not bar his appeal because challenges to the Guidelines calculations are not encompassed by the waiver provision and because the district court failed to state specifically that the general waiver of his right to challenge the imposition of his sentence included the district court’s determinations under the Sentencing Guidelines. Belloek also maintains that the Government may not invoke the waiver provision on appeal because it did not raise the waiver when Belloek objected at sentencing to the Guidelines calculations.

We review the validity of an appeal waiver de novo. United States v. Baymon, 312 F.3d 725, 727 (5th Cir.2002). The waiver provision broadly waived Bel-lock’s right to appeal his sentence “on any ground whatsoever,” as well as his appellate rights under 18 U.S.C. § 3742(a)(2), which included his right to appeal an “incorrect application of the sentencing guidelines.” The record of the rearraignment shows that the waiver was knowing and voluntary, as Belloek knew he had the right to appeal and that he was giving up that right in the plea agreement. See United States v.

McKinney, 406 F.3d 744, 746 (5th Cir.2005); United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir.1994). The plea agreement that Belloek signed contained the waiver provision, and the waiver did not include any exceptions specifically authorizing a challenge to the Guidelines calculations. Belloek confirmed under oath that he had reviewed the plea agreement with counsel and that he understood it.

The district court specifically advised Belloek that he was “waiving [his] right to appeal the conviction and sentence in this case or the manner in which the sentence is imposed on any grounds whatsoever.” Belloek again confirmed that he understood this. Finally, the district court advised Belloek of the applicability of the Sentencing Guidelines and the possibility that his sentence may be higher than the sentence that Bellock’s counsel estimated.

Because the waiver provision did not bar objections to the Guidelines calculations raised and addressed at sentencing, the Government was not required to invoke the waiver in the district court, as Belloek claims. Under the terms of the plea agreement, the district court was responsible for resolving factual issues at sentencing and determining the appropriate sentence. The waiver only bars Bel-lock’s appellate challenges to the Guidelines calculation.

When Belloek objected to the sentencing enhancements proposed in the PSR, he was not attempting to appeal his conviction or sentence; instead, he was invoking the district court’s authority to address factual sentencing disputes. There was therefore no reason for the Government to raise the waiver provision during the sentencing proceedings. Because the plain language of the waiver provision applies to Bellock’s challenges to his sentence on appeal, we will enforce the waiver and DISMISS the appeal. See United States v. Bond, 414 F.3d 542, 544, 546 (5th Cir.2005).

The Government’s motion to dismiss is GRANTED, and its alternative motion for

summary affirmance is DENIED. 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.