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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 92-1187
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CYNTHIA BATY,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
__________________________________________________________________
(December 23, 1992)
Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this appeal, Cynthia Baty challenges the sentence the
district court gave her for escaping from federal custody. First,
the government argues that Baty cannot bring this appeal because,
as a term of her plea agreement, she waived her right to appeal
from her guilty plea and sentence. The government's fall-back
argument is simply that the district court did not err in denying
a downward departure to her sentence for acceptance of
responsiblity. We hold that Baty has the right to appeal her
sentence because she did not knowingly and voluntarily waive her
right to appeal. We affirm the judgment of the district court,

however, because the district court did not err when it sentenced
Baty.
I
Cynthia Baty was originally convicted on December 19, 1986, of
possessing amphetamine with the intent to distribute it in
violation of 21 U.S.C. § 841(a)(1). The district court sentenced
Baty to three years incarceration with a special parole term of
three years. The government paroled Baty, but she violated the
terms of her parole and the district court ordered her to the
Federal Prison Camp in Bryan, Texas.
In January 1991, the government again paroled Baty and
transferred her to the Volunteers of America Halfway House in
Hutchins, Texas. On March 26, 1991, Baty left the halfway house
without authorization. When she failed to return, the government
placed her on escape status. Six months later, a Dallas police
officer apprehended Baty during a routine traffic stop. In October
of 1991, the government indicted Baty for escaping from federal
custody in violation of 18 U.S.C. § 751(a). Baty pled guilty on
December 11, 1991.
At the sentencing hearing, Baty requested a two-point downward
adjustment in her base offense level because she had accepted
responsibility for her escape. The district court denied Baty the
downward adjustment because the court concluded that Baty did not
accept responsibility for her escape. In reaching this decision,
the district court relied on the fact that Baty had escaped from
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prison, had remained a fugitive for six months, and had not
voluntarily surrendered to authorities. As a result of these
findings, the district court sentenced Baty to twenty-one months of
incarceration. Baty appeals her sentence.
II
The government contends that Baty waived her right to appeal
in the plea agreement. Paragraph eight provided that:
Baty waives any right to pursue any post-conviction writs
or appeals concerning any matters that Baty has asserted
or could assert to this prosecution or to the Court's
entry of Judgment.
In a recent opinion, we held that a defendant can "waive his right
to appeal as part of a plea agreement." United States v. Melancon,
972 F.2d 566, 567 (5th Cir. 1992).1 However, we also recognized
that "the waiver must be informed and voluntary." Id.
In the instant case, it is clear to us that Baty did not
knowingly waive her right to appeal. On more than one occasion,
Baty specifically asked the court to explain paragraph eight of the
plea agreement. Not knowing what was in paragraph eight, the court
asked the attorneys present about it. Mr. Snipes, the United
States Attorney, responded that the provision "provides that the
defendant waives her appeal right basically on conviction." Ms.
Coffee, Baty's attorney, told the court that she had asked the
United States Attorney to delete the paragraph, but he refused.
1See also United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.
1991); United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992).
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She then told the court that she "explained to my client as best I
could how I reviewed her choices." The court then told Baty that:
In other words, Ms. Baty, that is part of what the
government wants in the agreement, otherwise there is no
agreement. And if there is no agreement, then you just
have a decision to make and that is, [do] you want to
plead guilty with that in there or [do] you want to go
ahead and have a trial.
Baty decided to plead guilty without any further explanation of the
waiver of her right to appeal.
Thus, there was no satisfactory explanation to Baty of the
consequences of her waiver of her right to appeal.2 A defendant's
waiver of her right to appeal is not informed if the defendant does
not know the possible consequences of her decision.
We think that a defendant's waiver of her right to appeal
deserves and, indeed, requires the special attention of the
district court. When a defendant waives her right to appeal, she
gives up the very valuable right to correct a district court's
unknown and unannounced sentence. After waiving her right to
appeal, the district court could err in its application of the
Sentencing Guidelines or otherwise impose an illegal sentence.
2The record suggests that the Judge Solis was also unsure
about the consequences of the defendant's waiver of her right to
appeal. After sentencing Baty, Judge Solis told her:
I advise you that you have the right to appeal this case,
my sentence, if you wish to appeal that. And you also
have the right to file for a free appeal, free of cost in
attorneys if you are unable to afford the cost of the
appeal. Talk to Ms. Coffee about that, [and] advise me
of your decision on that.
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Indeed, the defendant may find herself serving unnecessary jail
time. Yet, the defendant, who has waived her right to appeal,
cannot appeal these errors. It is up to the district court to
insure that the defendant fully understands her right to appeal and
the consequences of waiving that right. In this case, Baty never
understood the consequences of waiving her right to appeal, and
thus, the waiver was not effective.
III
We now turn to the substance of Baty's appeal. She contends
that the district court erred when it denied her the two-point
reduction in her base offense level for accepting responsibility
for her criminal conduct. The sentencing guidelines provide that:
(a)
If the defendant clearly demonstrates a recognition
and affirmative acceptance of personal responsibility for
his criminal conduct, reduce the offense level by two
levels.
* * * *
(c)
A defendant who enters a guilty plea is not entitled
to a sentencing reduction under this section as a matter
of right.
United States Sentencing Commission, Guidelines Manual, § 3E1.1.
Our review of the district court's determination that Baty is not
entitled to the reduction is "even more deferential than a pure
clearly erroneous standard." United States v. Kinder, 946 F.2d
362, 367 (5th Cir. 1991) (quoting United States v. Fabregat, 902
F.2d 336, 347-348 (5th Cir. 1990)). Furthermore, as the defendant,
Baty had the burden of proving that she was entitled to the
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reduction in her base offense level. United States v. McDonald,
964 F.2d 390, 391 (5th Cir. 1992).
The only evidence that Baty offered to prove that she accepted
responsibility for her criminal conduct was her guilty plea. Under
the guidelines, however, Baty is not entitled to the adjustment
simply because she pleaded guilty. United States v. Hardeman, 933
F.2d 278, 284 (5th Cir. 1991). On appeal, instead of arguing that
she had evidence indicating that she had accepted responsibility
for her conduct, Baty argues that the district court erred in
relying on factors that the sentencing commission had already
considered. See Williams v. United States, 503 U.S. ___, 112 S.Ct.
1112 (1992).3 In rejecting a downward departure for acceptance,
the district court relied on the fact that Baty did not voluntarily
surrender herself to authorities and remained a fugitive for six
months. The district court was fully justified in using these
facts to discredit a mere assertion of entitlement to the reduction
and further to deny Baty the two-point adjustment. See United
States v. Ainsworth, 932 F.2d 358, 362 (5th Cir. 1991) (The
defendant's efforts to evade the police justified the district
court's decision to deny the defendant the adjustment).
Furthermore, despite Baty's arguments, the sentencing commission
3Baty also contends that the district court erred when it
found that certain hearsay statements in her pre-sentence report
were relevant in sentencing her. This argument is frivolous
because the district court explicitly told Baty that it was not
relying on any of the hearsay statements in the pre-sentence report
when it sentenced her.
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had not already considered the time she remained a fugitive or
whether she voluntarily surrendered herself when they determined
the base offense level for her offense. Thus, the district court
did not err when it denied Baty the adjustment for acceptance of
responsibility.
IV
To sum up, we hold that Baty did not effectively waive her
right to appeal because she did not understand the consequences of
the waiver when she pled guilty. However, we AFFIRM the district
court's sentence because it did not err when it denied Baty the
two-point reduction in her base offense level for accepting
responsibility for her actions.
A F F I R M E D.
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