Opinion
No. 09-51144 Summary Calendar.
October 19, 2010.
Deborah Watson, Richard B. Evans, U.S. Department of Justice, Washington, DC, for Plaintiff-Appellee.
Kerrisa Joy Chelkowski, Law Office of Kerrisa Chelkowski, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 5:07-CR-511-2.
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
Melissa Cockerham appeals her guiltyplea conviction for conspiring to commit money laundering. Cockerham contends: her appeal waiver does not bar her appeal; and, her Sixth Amendment right to a public trial was violated because the courtroom was closed during her guiltyplea hearing.
The Government does not invoke the appeal-waiver provision of Cockerham's plea agreement because that agreement bars only the appeal of her sentence. Therefore, this appeal is not barred. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
"We review constitutional challenges de novo." United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003) (quotation omitted); see also United, States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). Arguably, because the closed-courtroom issue was not raised in district court, review would be only for plain error. Under either standard, the claim fails.
The Sixth Amendment guarantees a public trial to all criminal defendants. Osborne, 68 F.3d at 98. A defendant may waive that right, however, by failing to object to the closing of the courtroom. Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (citing Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960)); United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006).
For the reasons that follow, Cockerham waived her right to public trial. At the guilty-plea hearing, her husband pleaded guilty first. After his plea, but before Cockerham's, the court announced the courtroom had been closed for the husband's and Cockerham's pleas. Cockerham and her counsel were present in the courtroom at that time; there is no indication in the record either Cockerham or her counsel objected to the closure of the courtroom before or during the plea hearing, at any subsequent proceeding, or by way of a written motion. "Where a defendant, with knowledge of the closure of the courtroom, fails to object, that defendant waives [her] right to a public trial." Hitt, 473 F.3d at 155 (citing Levine, 362 U.S. at 618-19, 80 S.Ct. 1038 (1960)). Moreover, "[a] defendant's attorney's waiver of the right to a public trial is effective on the defendant". Hitt, 473 F.3d at 155 (citing United States v. Sorrentino, 175 F.2d 721, 723 (3d Cir. 1949)).
AFFIRMED.