USCA11 Case: 20-14259 Date Filed: 11/24/2021 Page: 1 of 4
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14259
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL AGOSTO-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00025-CEM-DCI-1
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USCA11 Case: 20-14259 Date Filed: 11/24/2021 Page: 2 of 4
2 Opinion of the Court 20-14259
Before JORDAN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
The Government’s motion to dismiss this appeal pursuant
to the appeal waiver in Appellant’s plea agreement is GRANTED.
See United States v. Bushert,
997 F.2d 1343, 1350–51 (11th Cir.
1993) (sentence appeal waiver will be enforced if it was made
knowingly and voluntarily); United States v. Bascomb,
451 F.3d
1292, 1297 (11th Cir. 2006) (appeal waiver “cannot be vitiated or
altered by comments the court makes during sentencing”); United
States v. Grinard-Henry,
399 F.3d 1294, 1296 (11th Cir. 2005)
(waiver of the right to appeal includes waiver of the right to appeal
difficult or debatable legal issues or even blatant error).
USCA11 Case: 20-14259 Date Filed: 11/24/2021 Page: 3 of 4
20-14259 JORDAN, J., Dissenting 1
JORDAN, Circuit Judge, dissenting.
I would deny the government’s motion to dismiss this ap-
peal pursuant to the appeal waiver in Mr. Agosto-Martinez’s plea
agreement. With respect, I therefore dissent.
An appeal waiver is enforceable only if the defendant made
it knowingly and voluntarily. See United States v. Bushert,
997 F.2d
1343, 1350–51 (11th Cir. 1993). To show that an appeal waiver is
knowing and voluntary, “[t]he government must show that either
(1) the district court specifically questioned the defendant concern-
ing the sentence appeal waiver during the Rule 11 colloquy, or (2)
it is manifestly clear from the record that the defendant otherwise
understood the full significance of the waiver.”
Id. at 1351.
With regard to the appeal waiver, the district court at Mr.
Agosto-Martinez’s change of plea hearing stated only that “you’ve
expressly waived your right to appeal your sentence in accordance
with the limitations set forth in the plea agreement.” Plea Hearing
Transcript at 8–9. That superficial questioning is insufficient to
meet the first Bushert prong. See United States v. James, 744 F.
App’x 664, 665 n.1 (11th Cir. 2018) (refusing to enforce an appeal
waiver because the district court identified only some of the ex-
ceptions to the waiver, and did not ask the defendant if he under-
stood the waiver nor whether he understood it at the time he en-
tered into it); United States v. Quintanilla, 658 F. App’x 496, 497
(11th Cir. 2016) (refusing to enforce an appeal waiver because,
USCA11 Case: 20-14259 Date Filed: 11/24/2021 Page: 4 of 4
2 Opinion of the Court 20-14259
though the magistrate judge read out the terms of the waiver at the
change of plea hearing, “she did not specifically question [the de-
fendant] about the waiver or confirm that he understood what
those terms meant”); United States v. Grant, 689 F. App’x 935, 942
(11th Cir. 2017) (concluding that the district court did not suffi-
ciently question the defendant on his appeal waiver because,
though it confirmed that he understood the waiver, the court’s “ex-
planation was brief and vague, asking only whether [the defendant]
had understood by signing the waiver he had given up his right to
appeal except in the limited number of circumstances explicitly set
forth in the plea agreement”). See also United States v. Smith,
618
F.3d 657, 665 (7th Cir. 2010) (refusing to enforce an appeal waiver
because the district court did not provide any explanation to the
defendant of the substance of the waiver during the plea hearing).
In my view, it is not manifestly clear from the record that
Mr. Agosto-Martinez understood the full significance of his waiver
for purposes of the second Bushert prong. The government relies
on the district court’s brief statement and the text of the plea agree-
ment. See Govt.’s Mot. at 4–5. But the court’s questioning was in-
sufficient, and we have “reject[ed] the view . . . that an examination
of the text of the plea agreement is sufficient to find the waiver
knowing and voluntary.” Bushert,
997 F.2d at 1352.
