USCA11 Case: 22-10701 Document: 19-1 Date Filed: 12/30/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10701
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD A. KIRKENDALL,
a.k.a. Richard Andrew Kirkendall,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cr-00087-CEM-EJK-1
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2 Opinion of the Court 22-10701
____________________
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
On appeal, Richard Kirkendall appeals his 293-month total
sentence for receipt of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2), and possession of child pornography, in violation of
18 U.S.C. § 2252A(a)(5). First, Kirkendall argues that his appeal
waiver should not be enforced because his due process rights were
violated by the district court reviewing a prior case—that he did
not know the facts of—prior to imposing his sentence. He then
argues that if the appeal waiver is not enforced, we should review
the district court’s imposition of a five-level specific offense charac-
teristic increase, under U.S.S.G. § 2G2.2(b)(3)(B), because he dis-
tributed child pornography in exchange for any valuable consider-
ation. Second, Kirkendall argues that the district court plainly
erred by sentencing him above the statutory maximum on both of
his convictions, and he asserts that his sentence violates his Eighth
Amendment right against cruel and unusual punishment because
his sentence is above the statutory maximum and greatly dispro-
portionate of the offense as to offend evolving notions of decency.
I.
We review the validity of a sentence appeal waiver de novo.
United States v. Johnson,
541 F.3d 1064, 1066 (11th Cir. 2008).
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22-10701 Opinion of the Court 3
A sentence appeal waiver will be enforced if it was made
knowingly and voluntarily. United States v. Bushert,
997 F.2d
1343, 1350 (11th Cir. 1993). To establish that the waiver was made
knowingly and voluntarily, the government must show either that:
(1) the district court specifically questioned the defendant about the
waiver during the plea colloquy; or (2) the record makes clear that
the defendant otherwise understood the full significance of the
waiver.
Id. at 1351.
“An appeal waiver includes the waiver of the right to appeal
difficult or debatable legal issues or even blatant error.” United
States v. Grinard-Henry,
399 F.3d 1294, 1296 (11th Cir. 2005). Fur-
thermore, a defendant may waive his right to appeal both constitu-
tional and non-constitutional issues by executing a valid sentence-
appeal waiver. See United States v. Bascomb,
451 F.3d 1292,
1297 (11th Cir. 2006). Nevertheless, we have recognized some nar-
row, substantive exceptions to this rule. See King v. United States,
41 F.4th 1363, 1367 (11th Cir. 2022). For example, we will review
a sentence based on a constitutionally impermissible factor such as
race or a sentence imposed in excess of the statutory maximum
penalty even where a defendant has executed an appeal waiver.
Bushert,
997 F.2d at 1350 n.18; see also United States v. Howle,
166 F.3d 1166, 1169 n.5 (11th Cir. 1999) (suggesting that “extreme
circumstances”—e.g., a “public flogging” sentence—might justify
overlooking an appeal waiver).
Here, Kirkendall’s claim that his due process rights were vi-
olated by the district court reviewing a prior case—that he did not
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4 Opinion of the Court 22-10701
know the facts of—before imposing his sentence does not fall
within one of the appeal waiver’s exceptions. Nor does the claim
fit within one of our narrowly carved out exceptions permitting us
to look past an appeal waiver. Similarly, Kirkendall’s argument
that the district court erred in imposing a five-level specific offense
characteristic increase under U.S.S.G. § 2G2.2(b)(3)(B) because he
distributed child pornography in exchange for any valuable consid-
eration does not fall within one of the exceptions, and it is, there-
fore, barred by his knowing and voluntary appeal waiver. Accord-
ingly, we dismiss Kirkendall’s claims barred by his appeal waiver.
II.
Ordinarily, we review the legality of a criminal sentence de
novo. United States v. Prouty,
303 F.3d 1249, 1251 (11th Cir. 2002).
Illegal sentences include those that exceed the statutory maximum
for a given offense. United States v. Cobbs,
967 F.2d 1555, 1557–
58 (11th Cir. 1992). However, when an appellant fails to raise an
argument regarding the statutory maximum at the district court
level, we will review only for plain error. United States v. Smith,
532 F.3d 1125, 1129 (11th Cir. 2008). Under the plain error stand-
ard, the defendant must show that: (1) the district court erred,
(2) the error was plain, (3) the error affected his substantial rights,
and (4) the error seriously affected the fairness of the judicial pro-
ceedings. United States v. Ramirez-Flores,
743 F.3d 816, 822 (11th
Cir. 2014).
We have stated that a sentence that exceeds the statutory
maximum constitutes plain error. United States v. Eldick, 393 F.3d
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22-10701 Opinion of the Court 5
1354, 1354 n.1 (11th Cir. 2004). Such a sentence affects a defend-
ant’s substantial rights and seriously affects the fairness of the judi-
cial proceedings. United States v. Sanchez,
586 F.3d 918, 930 (11th
Cir. 2009). The maximum term of imprisonment for receipt of
child pornography, in violation of 18 U.S.C. § 2252A(a)(2), is
20 years’ imprisonment, 18 U.S.C. §§ 2252A(a)(2), (b)(1), and the
maximum term of imprisonment for possession of child pornogra-
phy, in violation of 18 U.S.C. § 2252A(a)(5), is 10 years’ imprison-
ment, id. §§ 2252A(a)(5)(B), (b)(2).
Here, as the government concedes, the district court plainly
erred when it exceeded the statutory maximum for both of Kirken-
dall’s convictions. Accordingly, we vacate Kirkendall’s sentences
and remand for resentencing. Given the necessity of resentencing,
we decline to consider Kirkendall’s Eighth Amendment challenge
because that claim is intertwined with the district court’s having
erroneously sentenced him above the statutory maximum.
DISMISSED IN PART, VACATED AND REMANDED IN
PART.
