Opinion
No. 10-31015 Summary Calendar.
June 24, 2011.
Brian Marshall Klebba, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, Stephen Andrew Higginson, Assistant U.S. Attorney, U.S. Attorney's Office, New Orleans, LA, for Plaintiff-Appellee.
Robin Elise Schulberg, Assistant Federal Public Defender, Virginia Laughlin Schlueter, Federal Public Defender, Federal Public Defender's Office, New Orleans, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:09-CR-153-1.
Before JOLLY, GARZA, and STEWART, Circuit Judges.
Tony Templet appeals his guilty plea conviction for receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). He argues that the indictment failed to charge him with an offense under § 2252(a)(2) because it did not specifically allege that he knew that the production of the visual depictions he received involved the use of a minor engaging in sexually explicit conduct. He does not contend that this guilty plea was involuntary or unknowing.
The Government moves to supplement the record on appeal with a copy of its sentencing memorandum, and Templet does not oppose the motion. See FED. R.APP. P. 10(e)(2). We grant the motion.
The Government argues that the provision in Templet's plea agreement waiving his right to appeal bars his claim, but the written appeal waiver only refers to Templet's right to appeal his sentence. Accordingly, his challenge to the sufficiency of the indictment is not barred by that specific provision. See United States v. Hards, 434 F.3d 767, 770-71 (5th Cir. 2005) (holding that we construe appeal waiver provisions narrowly and in favor of the defendant). Nevertheless, by pleading guilty, Templet waived his right to challenge such nonjurisdictional defects in the indictment. See United States v. Daughenbaugh, 549 F.3d 1010, 1011-12 (5th Cir. 2008).
MOTION GRANTED; AFFIRMED.