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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12166
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-00127-CG-MU-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES DERRICK ROBERTSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(November 15, 2019)
Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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The United States moves to dismiss James Derrick Robertson’s appeal of his
sentence based on the appeal waiver in his plea agreement. After careful
consideration, we conclude the waiver is enforceable and forecloses Robertson’s
appeal. We therefore grant the government’s motion.
I.
Pursuant to a written plea agreement, Robertson pled guilty to one count of
receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b) and
one count of obstructing justice in violation of 18 U.S.C. § 1519.
Robertson’s plea agreement included an appeal waiver. It said:
As part of the bargained-for exchange represented in this plea
agreement, and subject to the limited exceptions below, the defendant
knowingly and voluntarily waives the right to file any direct appeal or
any collateral attack, including a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. Accordingly, the defendant will not
challenge his guilty plea, conviction, or sentence in any district court
or appellate court proceedings.
The plea agreement listed several exceptions to this waiver. First, Robertson could
appeal “any sentence imposed in excess of the statutory maximum” and “any
sentence which constitutes an upward departure or variance from the advisory
guideline range.” Second, Robertson “reserve[d] the right to claim ineffective
assistance of counsel in a direct appeal or § 2255 motion.” Last, the plea
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agreement releases Robertson from the appeal waiver if the government files a
notice of appeal.
During Robertson’s change of plea hearing, the court confirmed Robertson
received the plea agreement, reviewed it with his attorneys, and signed it. The
court also asked Robertson if he understood that he was waiving his right to appeal
“in all but [] three circumstances,” which were: (1) if the sentence was “in excess
of the statutory maximum”; (2) if the sentence “constitute[d] an upward departure
or variance from the sentencing guideline range”; or (3) to raise an ineffective
assistance of counsel claim. The court did not explain that the plea agreement also
permits Robertson to appeal if the government files a notice of appeal. The court
ultimately accepted Robertson’s guilty plea, finding it was both “knowing and
voluntary.”
In its presentence investigation report (“PSR”), the probation office
determined that Robertson had an advisory guideline range of 188 to 235 months.
In calculating Robertson’s guideline range the probation office applied several
sentencing enhancements under United States Sentencing Guidelines § 2G2.2(b).
Robertson objected that the separate enhancements imposed under U.S.S.G.
§ 2G2.2(b)(2) and (4) would constitute impermissible double counting. At
sentencing, the court overruled Robertson’s objection and sentenced him to 235-
months imprisonment. Robertson appealed, arguing only that the district court
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engaged in impermissible double counting. The government moved to dismiss
Robertson’s appeal, asking us to enforce the appeal waiver. Robertson did not
respond to the government’s motion.
II.
Robertson’s plea agreement forecloses this appeal. Robertson expressly
“waive[d] the right to file any direct appeal,” with only exceptions that do not
apply here. Robertson’s 235-month sentence does not exceed the 20-year statutory
maximum for either count, see 18 U.S.C. §§ 1519, 2252A(b)(1); his appeal does
not raise an ineffective assistance of counsel claim; and the government has not
filed a notice of appeal.
And while Robertson claims the district court inappropriately calculated his
guideline range by double counting enhancements, he does not argue the court
departed from its calculated guideline range. Cf. United States v. Grinard-Henry,
399 F.3d 1294, 1296–97 (11th Cir. 2005) (per curiam) (holding that an appeal
waiver barred even “difficult or debatable legal issues,” such as a claim that the
guidelines were “unconstitutionally applied”). Indeed, the plea agreement
expressly warned that “no one can predict with certainty what the sentencing range
will be in this case until after [the] pre-sentence investigation has been concluded
and the Court has ruled on the result of that investigation.” In accepting these
terms, Robertson acknowledged he might disagree with the district court’s
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calculation of his guidelines range, and that if he did, he would be unable to
challenge it on appeal.
Having determined Robertson’s claim is barred by the appeal waiver, we
must decide whether the waiver is enforceable. We review de novo the validity of
an appeal waiver, United States v. Johnson,
541 F.3d 1064, 1066 (11th Cir. 2008),
and we enforce it only if the government establishes that the waiver was made
knowingly and voluntarily, United States v. Bushert,
997 F.2d 1343, 1350–51
(11th Cir. 1993). The government has met its burden here by showing that “the
district court specifically questioned the defendant concerning the sentence appeal
waiver during the [plea] colloquy.”
Id. at 1351.
The district court’s failure to question Robertson about one of the four
possible exceptions to the waiver does not alter this result, as the touchstone for
assessing a court’s explanation of a waiver is whether it “clearly convey[ed] to [the
defendant] that he was giving up his right to appeal under most circumstances.”
Bushert, 997 F.2d at 1352–53. The district court’s thorough questioning at the plea
colloquy, in which it explained the effect of the appeal waiver and noted three of
its four exceptions, accomplished as much. We therefore grant the government’s
motion.
APPEAL DISMISSED.
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