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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15631
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00353-JSM-JSS-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER B. WILLIAMS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 26, 2018)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Peter B. Williams appeals his 26-month sentence after pleading guilty to one
count of conspiracy to commit health care fraud and wire fraud, in violation of 18
U.S.C. § 1349. On appeal, Williams argues his counsel was ineffective for failing
to object to the district court’s application of United States Sentencing Guidelines
§ 5K1.1 in imposing Williams’s sentence to run consecutive to a sentence imposed
on him in a related case. The government responds that Williams waived his right
to appeal the district court’s calculation of his guideline range, and that his
ineffective assistance claim fails on the merits. After careful review, we affirm
Williams’s sentence.
I.
In August 2016, Williams was charged with conspiracy to commit health
care fraud and wire fraud. Williams pled guilty pursuant to a plea agreement.
Williams admitted he signed prescriptions for medications for patients he did not
treat in exchange for illegal kickbacks.
Williams’s plea agreement included a sentence appeal waiver. Specifically,
Williams agreed to waive his rights “to appeal any sentence imposed, including
any forfeiture or restitution ordered, or to appeal the manner in which the sentence
was imposed, unless the sentence exceeds the maximum permitted by statute or is
the result of an upward departure and/or a variance from the guideline range that
the Court establishes at sentencing.” At Williams’s change of plea hearing, a
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magistrate judge questioned Williams about whether he understood the sentence
appeal waiver, explained the general right a defendant has to appeal, and stated the
four limited grounds under which the waiver allowed him to appeal. Williams said
he understood and had discussed the waiver with his attorney. The magistrate
judge recommended that the district court accept Williams’s plea, which the
district court did.
A probation officer prepared a Presentence Investigation Report (“PSR”),
which recommended a sentencing guideline range of 51 to 63 months. The
government moved for a 25 percent reduction of Williams’s sentence, pursuant to
Guidelines § 5K1.1 and 18 U.S.C. § 3553 because of the substantial assistance he
had provided. At sentencing, Williams’s counsel asked the court to grant the
government’s motion for a downward departure and to consider an additional
downward variance. Williams’s counsel also asked the court to impose his
sentence concurrently with the sentence he was serving for another conviction in
the Southern District of Florida. The government also asked that Williams’s
sentence be concurrent.
The sentencing court granted the government’s motion and sentenced
Williams to a 26-month term of prison, which was approximately 50 percent below
the low end of his guideline range. However, the court made Williams’s sentence
consecutive, not concurrent, to his term of imprisonment from a Southern District
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of Florida conviction. Williams’s counsel made a general objection to the sentence
running consecutive, which the court denied. This appeal followed.
II.
We review de novo the validity of a sentence appeal waiver. United States
v. Johnson,
541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver is
enforceable so long as it was made knowingly and voluntarily. United States v.
Bushert,
997 F.2d 1343, 1350–51 (11th Cir. 1993). To establish the waiver as
knowing and voluntary, “[t]he government must show that either (1) the district
court specifically questioned the defendant concerning sentence appeal waiver
during the [plea] colloquy, or (2) it is manifestly clear from the record that the
defendant otherwise understood the full significance of the waiver.”
Id. at 1351.
The plea colloquy discussion must clearly convey the terms of a defendant’s
sentence appeal waiver with a detailed discussion. See United States v. Buchanan,
131 F.3d 1005, 1008 (11th Cir. 1997) (per curiam) (enforcing an appeal waiver
where the district court explained the “nature and extent” of the waiver and
questioned the defendant about the waiver).
Where a valid appeal waiver exists, a defendant may not “circumvent the
terms of the sentence-appeal waiver simply by recasting a challenge to his sentence
as a claim of ineffective assistance, thus rendering the waiver meaningless.”
Williams v. United States,
396 F.3d 1340, 1342 (11th Cir. 2005). Even so, “[w]e
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generally do not address ineffective assistance of counsel claims on direct appeal.”
United States v. Puentes-Hurtado,
794 F.3d 1278, 1285 (11th Cir. 2015) (holding
that a claim that counsel’s ineffective assistance rendered a guilty plea involuntary
was not barred by an appeal waiver but declining to reach the merits of the claim
on direct appeal). The preferred method for raising ineffective assistance of
counsel claims is in a 28 U.S.C. § 2255 motion, as this allows the district court to
develop the facts necessary to determine the adequacy of representation. See
Massaro v. United States,
538 U.S. 500, 504–07,
123 S. Ct. 1690, 1693–95 (2003).
On appeal, Williams argues his counsel was ineffective for failing “to object
to the district court’s misapplication of U.S.S.G. § 5K1.1.” To the extent that
Williams’s argument is that the district court erred in applying Guidelines § 5K1.1
and imposing a consecutive sentence, that argument is barred by his valid sentence
appeal waiver. Williams made a knowing and voluntary waiver of his right to
appeal his sentence. The magistrate judge discussed the appeal waiver’s scope and
meaning in detail, mentioned that it covered his appellate rights, and specifically
questioned him about the waiver. Williams’s appeal waiver is therefore
enforceable. See
Bushert, 997 F.2d at 1351. Williams has waived his right to
“appeal any sentence imposed . . . or to appeal the manner in which the sentence
was imposed.” To the extent Williams’s appeal challenges the district court’s
application of the sentencing guidelines, we affirm his conviction and sentence.
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To the extent Williams argues his counsel at sentencing was ineffective, we
decline to consider this argument on direct appeal in the absence of a more
developed record regarding his counsel’s actions. See
Puentes-Hurtado, 794 F.3d
at 1285.
AFFIRMED.
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