USCA11 Case: 21-13832 Document: 40-1 Date Filed: 12/23/2022 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13832
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLOYD ELLIS WYCHE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20051-CMA-1
____________________
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2 Opinion of the Court 21-13832
____________________
No. 21-14301
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLOYD ELLIS WYCHE, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20051-CMA-1
____________________
Before JORDAN, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Floyd Wyche pleaded guilty to conspiracy to commit Hobbs
Act robbery, in violation of
18 U.S.C. § 1951(a); three counts of
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21-13832 Opinion of the Court 3
Hobbs Act robbery, in violation of
18 U.S.C. § 1951(a) and
18 U.S.C.
§ 2; and brandishing a firearm in furtherance of a crime of violence,
in violation of
18 U.S.C. § 924(c)(1)(A)(ii) and
18 U.S.C. § 2. The
district court sentenced Wyche to 147 months’ imprisonment and
ordered him to pay $4,442 in restitution. Wyche appeals his con-
victions, and resulting sentence, arguing that (1) his guilty plea was
not knowing and voluntary because the district court failed to de-
termine that he understood the nature of aiding and abetting liabil-
ity; (2) his sentence is procedurally unreasonable because the dis-
trict court failed to explain why it rejected his arguments in support
of a downward variance sentence; and (3) aiding and abetting a
Hobbs Act robbery does not qualify as a “crime of violence” under
18 U.S.C. § 924(c). We conclude that his guilty plea was knowing
and voluntary, that he waived his right to appeal, and affirm.
I.
First, Wyche argues that his guilty plea was not knowing
and voluntary because the district court violated a “core concern”
of Federal Rule of Criminal Procedure 11 by failing to ensure that
Wyche understood the nature of aiding and abetting liability for
the substantive charges to which he pleaded guilty.
To ensure that a defendant’s guilty plea is voluntary and
knowing, the district court must address three “core concerns” of
Rule 11: (1) whether the defendant entered the guilty plea free from
coercion; (2) whether the defendant understands the nature of the
charges; and (3) whether the defendant understands the
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4 Opinion of the Court 21-13832
consequences of the guilty plea. United States v. Presendieu,
880
F.3d 1228, 1238 (11th Cir. 2018). Wyche argues that the district
court did not satisfy this second core concern.
Because Wyche neither objected to the adequacy of his plea
proceedings before the district court, nor moved to withdraw the
plea, we review the district court’s compliance with Rule 11 only
for plain error. United States v. Moriarty,
429 F.3d 1012, 1018-19
(11th Cir. 2005) (citations omitted). A “defendant who seeks rever-
sal of his conviction after a guilty plea, on the ground that the dis-
trict court committed plain error under Rule 11, must show a rea-
sonable probability that, but for the error, he would not have en-
tered the plea.” United States v. Dominguez Benitez,
542 U.S. 74,
83 (2004).
We review “on a case-by-case basis whether the district
court adequately ensured that a defendant understood the nature
of the charge.” United States v. James,
210 F.3d 1342, 1344 (11th
Cir. 2000). That assessment considers the entire record, focusing
on the complexity of the charges, the defendant’s intelligence and
sophistication, the contents of the factual proffer and the defend-
ant’s assent to that proffer, the defendant’s admission to commit-
ting the crime, and the court’s factual finding that the defendant
understood the nature of the charges and entered a voluntary and
knowing guilty plea. See Presendieu, 880 F.3d at 123841.
According to Wyche, the district court “failed to ensure that
[he] understood the nature of aiding and abetting liability for the
substantive charges to which he pleaded guilty.” Wyche points out
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21-13832 Opinion of the Court 5
that aiding and abetting liability was not mentioned in his plea
agreement and neither the district court nor the prosecutor explic-
itly referenced aiding and abetting liability when explaining his sub-
stantive charges. And he argues that “nothing in the record shows
anyone else ever explained the legal requirements for aiding and
abetting liability to” him, even though “[t]he record reflects [his]
confusion about abetting and abetting liability.”
We disagree. Upon consideration of the entire record, we
affirm the district court’s determination that Wyche understood
the nature of the charges against him, including those based on aid-
ing and abetting liability. Wyche’s plea agreement was accompa-
nied by a factual proffer, signed by Wyche, in which Wyche
“agree[d] that [he] . . . aided and abetted the commission of the
robberies” by serving as the getaway driver and location scout.
Wyche confirmed at the plea colloquy that he read this factual prof-
fer and discussed it with his counsel. The district court also pro-
vided Wyche a detailed and lengthy summary of the factual proffer
during the plea colloquy, recounting Wyche’s role as the getaway
driver and location scout during the robberies and Wyche’s agree-
ment that he “aided and abetted the commission of these rob-
beries.” Wyche confirmed that “all of these facts” were “true and
correct” and would be sufficient to prove his guilt “beyond a rea-
sonable doubt” at trial.
Wyche also confirmed that he had received “a copy of the
indictment containing the written charges against” him, had “fully
discussed that indictment and [his] case in general” with his
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6 Opinion of the Court 21-13832
counsel, and was “fully satisfied with [his legal] representation.”
Wyche’s counsel added that he and Wyche had “gone over the in-
dictment in its entirety several times.” And Wyche’s indictment ex-
plicitly charged the Hobbs Act robbery counts and the firearm
count under
18 U.S.C. § 2—the statute criminalizing aiding or abet-
ting the commission of another crime. Wyche agreed to plead
guilty to those aiding-and-abetting counts in his plea agreement.
And Wyche’s counsel explained during the plea colloquy that he
and Wyche had “go[ne] over the plea agreement in its entirety,”
“reviewed all of the Government’s discovery,” “gone over the case
law” relating to his charges, and “discussed various defenses.”
Wyche confirmed that he had the opportunity to read his plea
agreement and discuss it with his counsel.
The district court stated the names of the charges to which
Wyche was pleading guilty, and Wyche confirmed that he under-
stood these charges. The government also set forth the elements
of these offenses. Wyche’s counsel confirmed that the govern-
ment’s recitation of the elements was accurate, and clarified that,
although Wyche had not himself possessed or brandished a fire-
arm, he had explained to Wyche that the crime “could apply to
[Wyche] in the sense that he’s a codefendant who aided and abet-
ted and conspired with Mr. Smith.”
Wyche stated that he agreed with “most of” his counsel’s
statements. When asked if there was a statement with which he
disagreed, Wyche responded, “No, only that the government,
about the brandishing part, about me robbing somebody.”
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21-13832 Opinion of the Court 7
Wyche’s counsel said Wyche was trying to clarify that he had not
himself possessed or brandished a firearm during the robberies, but
rather was the getaway driver. Wyche confirmed that he agreed
with this characterization of his comment.
As to Wyche’s intelligence and sophistication, Wyche testi-
fied that he had a twelfth-grade education and no physical or men-
tal conditions that would prevent him from understanding the pro-
ceedings. He also confirmed that no one was “putting pressure
upon [him], forcing [him], or coercing [him] to plead guilty and
agree to the terms contained in the written plea agreement” and
that he was pleading guilty of his own free will. Finally, Wyche
confirmed that he understood the rights he was giving up by plead-
ing guilty.
These facts support the district court’s conclusion that
Wyche understood the nature of the charges against him, including
those based on aiding and abetting liability. See United States v.
Wiggins,
131 F.3d 1440, 1442 (11th Cir. 1997) (no plain error, de-
spite that district court did not outline each element of his offense
or ask him if he understood those elements, where it told the de-
fendant to listen to the government’s recitation of the factual prof-
fer and the defendant then admitted to those facts); Presendieu, 880
F.3d at 1239, 1241 (“[E]ven if these crimes are considered to be
more complex than the simplest crimes, the detailed nature of the
seven-page factual proffer accompanying Presendieu’s written plea
agreement and his express assent to that proffer show that
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8 Opinion of the Court 21-13832
Presendieu well understood the nature of the two charges against
him.”).
That the district court and prosecutor did not explicitly men-
tion aiding and abetting liability when stating the charges against
Wyche and the elements of those charges does not amount to plain
error. See United States v. Camacho,
233 F.3d 1308, 1317 (11th Cir.
2000) (“Although the district court in this case did not explain the
requirements for a conviction under an aiding and abetting theory
or discuss directly the significance of the aiding and abetting theory
to Appellant, as long as the factual proffer would support Appel-
lant’s conviction under the aiding and abetting theory, the district
court’s acceptance of the factual proffer as sufficient was proper.”);
see also Presendieu, 880 F.3d at 1238 (“Importantly, Rule 11 does
not specify that a district court must list the elements of an of-
fense.”).
Indeed, we rejected this precise argument in United States
v. DePace,
120 F.3d 233 (11th Cir. 1997). There, the government
charged the defendant based exclusively on a theory of aiding and
abetting liability.
Id. at 236. Although neither the indictment, the
plea agreement, the district court’s explanation of the charge, nor
the government’s explanation of the essential elements of the
crime explained the aiding and abetting theory, we held that the
district court satisfied Rule 11’s second core concern. Id. at 23637.
We relied upon the fact that the defendant agreed with the factual
proffer during the plea colloquy, admitted that he had assisted in
the underlying offense, confirmed that he had reviewed the plea
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21-13832 Opinion of the Court 9
agreement and indictment with his counsel, and never objected or
expressed any confusion throughout the proceeding. Id. at 238; see
also Wiggins,
131 F.3d at 1442–43 (upholding district court’s deter-
mination that defendant understood nature of charge where dis-
trict court failed to explain elements of offense but where defend-
ant admitted to robbing banks, pled guilty unequivocally, and
stated that he understood the charges against him).
Wyche seeks to distinguish DePace on the ground that
Wyche, unlike DePace, expressed confusion about aiding and abet-
ting liability during the plea colloquy. We disagree. Wyche never
stated that he was confused or did not understand the nature of the
charges against him. Camacho, 233 F.3d at 1316 (“Appellant, who
was represented by counsel, never voiced any confusion about the
charge to which she was pleading, nor did she object to the district
court's handling of the Rule 11 inquiry.”). Wyche’s statement that
he disagreed with the government to the extent it was suggesting
that Wyche had himself robbed anyone—as opposed to assisting as
the getaway driver—does not evince confusion about the nature of
aiding and abetting liability. To the contrary, it suggests that
Wyche himself understood that, by virtue of the aiding and abet-
ting statute, he was pleading guilty based on his assistance in the
robbery. This interpretation of the interaction at the plea colloquy
does not amount to plain error.
At bottom, “the record as a whole establishes that” Wyche
“was aware of the charges to which he was pleading guilty,” “was
sufficiently intelligent to understand the nature of those charges,”
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10 Opinion of the Court 21-13832
“understood that the facts set forth in the factual proffer established
that he was guilty of those . . . offenses,” “had discussed the . . .
charges and the facts in the proffer with his attorney,” and “une-
quivocally and intelligently pled guilty to [the] charges in the plea
agreement.” Presendieu, 880 F.3d at 1241–42. His plea was thus
knowing and voluntary.
II.
Second, Wyche challenges two aspects of his sentence and
restitution order. First, he argues that his sentence is procedurally
unreasonable because the district court failed to explain why it re-
jected some of his arguments in support of a lower sentence, such
as his “extended period of law-abiding conduct, during which he
held a stable job and cared for his family,” his “low risk of recidi-
vism,” and “the general deterrence provide[d] by the lengthy man-
datory minimum sentence.” Second, he argues that the district
court erred in failing to make his restitution judgment joint and
several with the overall restitution order entered as to his code-
fendant. Wyche’s sentence appeal waiver precludes these chal-
lenges.
We review the validity of a sentence appeal waiver de novo.
United States v. Johnson,
541 F.3d 1064, 1066 (11th Cir. 2008) (cita-
tion omitted). We will enforce such a waiver so long as the defend-
ant entered it knowingly and voluntarily. United States v. Bushert,
997 F.2d 1343, 135051 (11th Cir. 1993). We will find an appeal
waiver knowing and voluntary if either (1) the district court
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21-13832 Opinion of the Court 11
questioned the defendant about the waiver during the plea collo-
quy, or (2) the record makes clear that the defendant otherwise un-
derstood the full significance of the waiver.
Id. at 1351.
Wyche’s plea agreement included a waiver of his right to ap-
peal his sentence, “including any restitution order, 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 an upward variance from the advisory
guideline range.” Wyche was sentenced to the bottom of the guide-
line range, well below the statutory maximum, and the govern-
ment has not appealed the sentence. Accordingly, none of the pro-
vision’s exceptions apply. The sentence appeal waiver thus bars
Wyche’s challenges to his sentence provided it was entered know-
ingly and voluntarily. We hold that it was.
The plea agreement stated that, by signing the agreement,
Wyche was acknowledging that he had discussed the appeal waiver
with his attorney and that he agreed to request, with the govern-
ment, that the district court enter a specific finding that he know-
ingly and voluntarily waived his right to appeal his sentence or con-
viction. And the district court specifically questioned Wyche about
the appeal waiver during the plea colloquy, during which Wyche
confirmed that he discussed the waiver with his attorney and that
he was knowingly and voluntarily giving up the right to appeal.
These facts suffice to demonstrate that the waiver was knowing
and voluntary. See Bushert,
997 F.2d at 1351; United States v.
Weaver,
275 F.3d 1320, 1333 (11th Cir. 2001) (“Here, the waiver
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12 Opinion of the Court 21-13832
provision was referenced during Weaver’s Rule 11 plea colloquy
and Weaver agreed that she understood the provision and that she
entered into it freely and voluntarily. Thus, her waiver is valid.”).
III.
Third, Wyche urges us to vacate his
18 U.S.C. § 924(c) con-
viction on the ground that aiding and abetting a Hobbs Act robbery
is not a “crime of violence.” In relevant part, Section 934(c) says
that a crime of violence is a felony that “has as an element the use,
attempted use, or threatened use of physical force against the per-
son or property of another.”
18 U.S.C. § 924(c)(3)(A). We held that
the crime of aiding and abetting a Hobbs Act robbery meets this
definition in In re Colton,
826 F.3d 1301, 1305 (11th Cir. 2016).
Wyche acknowledges that our decision in Colton conflicts with his
position, but he argues that the Supreme Court’s recent decision in
United States v. Taylor,
142 S. Ct. 2015 (2022) “overrules” Colton.
Wyche’s argument is foreclosed by the appeal waiver in his
plea agreement. Wyche agreed in his plea agreement that he would
not appeal on the ground that “the admitted conduct does not fall
within the scope of the statutes of conviction.” See United States v.
DiFalco,
837 F.3d 1207, 1215 (11th Cir. 2016) (“[A] waiver of appel-
late rights applies not only to frivolous claims, but also to difficult
and debatable legal issues.”) (citations omitted); King v. United
States,
41 F.4th 1363, 1370 (11th Cir. 2022) (holding that we will
“enforc[e] appeal waivers against claims based on new constitu-
tional rules”). As we have already explained, this waiver was
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21-13832 Opinion of the Court 13
knowing and voluntary. For these reasons, we do not address the
merits of Wyche’s argument about whether aiding and abetting a
Hobbs Act robbery meets the definition of a crime of violence un-
der Section 924(c).
IV.
For the foregoing reasons, we AFFIRM Wyche’s sentence
and conviction.
