United States v. Antone Dewell Brown , 156 F. App'x 209 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2005
No. 05-10500 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20203-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONE DEWELL BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 29, 2005)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Antone Dewell Brown appeals his conviction and 60-month sentence for
possession with intent to distribute 500 grams or more of cocaine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). After review, we affirm Brown’s
conviction and dismiss his appeal of his sentence.
I. BACKGROUND FACTS
Brown pled guilty pursuant to a written plea agreement. His plea agreement
contained a sentence appeal waiver, providing that Brown waived his right to
appeal “any sentence imposed . . . 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 from the guideline range . . . .” His appeal
waiver also stated that Brown waived claims that the Sentencing Guidelines were
unconstitutional or that facts found by the sentencing court were not admitted by
him or found by the jury, as follows:
This appeal waiver includes a waiver of the right to appeal the
sentence on the ground that the sentencing guidelines are in any
respect unconstitutional, or on the grounds that any fact found by the
Court at sentencing was not alleged in the indictment, admitted by the
defendant, found by a jury, or found beyond a reasonable doubt.
Prior to sentencing, Brown filed a pro se motion to withdraw his guilty plea,
asserting that his counsel was ineffective. At the sentencing hearing, however,
Brown consulted with his counsel and then indicated that he wished to withdraw
his motion to withdraw his plea and proceed with sentencing, specifically stating:
“I withdraw the motion.” After being sentenced, Brown filed a pro se motion for
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reconsideration of his motion to withdraw his guilty plea, asserting that he had
been very nervous during the sentencing hearing and had not intended to withdraw
his motion. The district court summarily denied Brown’s motion for
reconsideration. Brown then filed this appeal.
II. DISCUSSION
A. Guilty Plea
On appeal, Brown argues that the district court erred in denying his motion
to withdraw his guilty plea. The district court did not deny Brown’s motion to
withdraw his guilty plea. Rather, after discussion with the court and consultation
with counsel, Brown voluntarily withdrew his motion and opted to proceed with
sentencing. Because the district court did not rule on Brown’s withdrawn motion,
there is no ruling for this Court to review.1 See United States v. Montoya, 782
F.2d 1554, 1556 (11 th Cir. 1986) (holding that, absent exceptional circumstances,
defendant’s withdrawal of motion for mistrial leaves “nothing for this court to
review,” and noting that this court would not “countenance the practice of
‘sandbagging’ the district court” by withdrawing the motion after consultation with
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For the same reason, the district court had no ruling to reconsider. Therefore, the
district court did not err in denying Brown’s motion for reconsideration. Even if Brown’s
motion for reconsideration is construed as a renewed motion to withdraw his guilty plea, the
district court properly denied the post-sentence motion because Rule 11 prohibits a defendant
from withdrawing a guilty plea after a sentencing. See Fed. R. Crim. P. 11(e) (“After the court
imposes sentence, the defendant may not withdraw a plea of guilty . . ., and the plea may be set
aside only on direct appeal or collateral attack.”).
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counsel and then arguing on appeal reversible error for failing to grant the motion);
see also United States v. Olano, 507 U.S. 725, 733-34 (1993) (explaining that in
criminal cases plain error review under Rule 52(b) extends to forfeited errors, in
which the defendant fails to make a timely objection, but not to waived errors, in
which the defendant intentionally relinquishes or abandons a known right); United
States v. Masters, 118 F.3d 1524, 1526 (11 th Cir. 1997) (holding that defendant
waived objection at sentencing to upward departure when he stated that he wanted
to withdraw the objection and proceed with sentencing and refusing to conduct
plain error review).
B. Sentence
Brown also argues that at sentencing he was entitled to either a minor role
reduction or safety-valve reduction. In addition he argues that his case should be
remanded for resentencing under United States v. Booker, 543 U.S. ___, 125 S. Ct.
738 (2005). In his written plea agreement, Brown waived his right to appeal his
sentence unless the sentence exceeded the statutory maximum or was the result of
an upward departure. In addition, the sentence appeal waiver expressly precluded
Brown from raising claims that the Sentencing Guidelines were unconstitutional or
that facts found by the sentencing court were not admitted by him or found by a
jury.
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Appeal waivers are generally enforceable when they are knowingly and
voluntarily entered. See United States v. Buchanan, 131 F.3d 1005, 1008 (11 th Cir.
1997). We review do novo the knowing and voluntary nature of the waiver.
United States v. Bushert, 997 F.2d 1343, 1352 (11 th Cir. 1993). We will enforce a
sentence appeal waiver provision contained in a plea agreement if the government
demonstrates either that (1) the district court questioned the defendant about the
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. In addition, we have held that “the right to appeal a sentence based on
Apprendi/Booker grounds can be waived in a plea agreement,” and “[b]road
waiver language covers those grounds of appeal.” United States v. Rubbo, 396
F.3d 1330, 1335 (11th Cir. 2005), cert. denied, 73 U.S.L.W. 3734 (U.S. Oct 11,
2005) (No. 04-1663).
The record reveals that the district court specifically questioned Brown
about the sentence appeal waiver during the plea colloquy. Brown acknowledged
that he understood that he was relinquishing his right to appeal his sentence except
under limited circumstances. Brown also acknowledged that he had discussed with
his attorney the then-recent Supreme Court decision in Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004), and that he understood he was giving up his right
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to challenge his sentence based on a Blakely argument. Accordingly, Brown’s
sentence appeal waiver is enforceable and valid. Because Brown knowingly and
voluntarily waived his right to appeal his sentence on the grounds asserted in his
brief, we dismiss his appeal of his sentence.
Accordingly, we affirm Brown’s conviction and dismiss the appeal of his
sentence.
AFFIRMED IN PART, DISMISSED IN PART.
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