USCA11 Case: 22-11632 Date Filed: 11/16/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11632
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO CRAWFORD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00318-MLB-JKL-2
____________________
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2 Opinion of the Court 22-11632
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Fernando Crawford pleaded guilty, pursuant to a written
plea agreement containing a sentence-appeal waiver, to one count
of conspiracy to commit wire fraud. 1 Following his plea, Crawford
filed a consent motion for a 60-day continuance of his sentencing
hearing because his wife (who was also his codefndant)—whom he
intended to call at sentencing to support his request for a minor
role reduction under the guidelines—had been taken into INS
custody and was unavailable for the sentencing hearing. The
district court denied the motion by docket entry. 2 Thereafter, the
district court sentenced Crawford to 37 months’ imprisonment
followed by three years’ supervised release.
Crawford appeals, arguing that the district court’s denial of
his request for a continuance so that he could obtain the testimony
of an exculpatory witness violated his Fifth Amendment rights to
1 Crawford was indicted on twelve criminal counts. In exchange for his plea
to Count 1, the government agreed to dismiss all of the remaining counts upon
entry of the judgment pursuant to the Northern District of Georgia’s Standing
Order 07-04, which provides that “any counts still pending in a criminal case
at the time the Judgment and Commitment Order is entered are dismissed
without prejudice . . . .” See N.D. Ga. Standing Order 07-04 (September 12,
2007).
2 Crawford renewed his request for a continuance at sentencing, and it was
denied.
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22-11632 Opinion of the Court 3
compulsory process and a fair hearing. The government moves to
dismiss this appeal pursuant to the sentence-appeal waiver.
Crawford opposes the motion. He acknowledges that the
sentence-appeal waiver is valid, but he argues that it does not apply
because no appeal waiver contemplates that a defendant waive his
right to due process and a fair sentencing hearing. After review,
we conclude that the appeal waiver is unambiguous, valid,
enforceable, and that it bars Crawford’s claim. Therefore, we grant
the government’s motion to dismiss.
Crawford’s plea agreement contained the following
sentence-appeal waiver:
To the maximum extent permitted by federal law, the
Defendant voluntarily and expressly waives the right
to appeal his conviction and sentence and the right to
collaterally attack his conviction and sentence in any
post-conviction proceeding (including, but not
limited to, motions filed pursuant to
28 U.S.C. § 2255)
on any ground, except that the Defendant may file a
direct appeal of an upward departure or upward
variance above the sentencing guideline range as
calculated by the District Court. Claims that the
Defendant’s counsel rendered constitutionally
ineffective assistance are excepted from this waiver.
The Defendant understands that this Plea Agreement
does not limit the Government’s right to appeal, but
if the Government initiates a direct appeal of the
sentence imposed, the Defendant may file a cross-
appeal of that same sentence.
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4 Opinion of the Court 22-11632
The record establishes that the district court questioned Crawford
about the sentence-appeal waiver during the change-of-plea
hearing, and that it was knowingly and voluntarily entered.
Indeed, Crawford does not dispute that the appeal waiver is valid.
See United States v. Bushert,
997 F.2d 1343, 1351 (11th Cir. 1993)
(explaining that to be valid and enforceable, the government must
show that either (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). Rather, Crawford argues that the
type of Fifth Amendment due process challenge to the sentencing
proceedings that he raises is not contemplated by the sentence-
appeal waiver. We disagree.
“[A]n appeal waiver includes the waiver of the right to
appeal difficult or debatable legal issues or even blatant error.” 3
United States v. Boyd,
975 F.3d 1185, 1191 n.5 (11th Cir. 2020)
(quoting United States v. Grinard-Henry,
399 F.3d 1294, 1296 (11th
Cir. 2005)); see United States v. Howle,
166 F.3d 1166, 1169 (11th
Cir. 1999) (same). Thus, a defendant is “free to bargain away his
right to raise constitutional issues” on appeal, and even “a vigorous
dispute about an issue during the sentencing proceedings does not
preserve that issue for appeal when the terms of the appeal waiver
3 “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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22-11632 Opinion of the Court 5
do not except it from the waiver.” United States v. Bascomb,
451 F.3d 1292, 1296–97 (11th Cir. 2006).
Nevertheless, we have recognized that a sentence-appeal
waiver “is not an absolute bar to appellate review” and,
notwithstanding such a waiver, appellate review may be available
in a narrow category of circumstances. United States v. Johnson,
541 F.3d 1064, 1068 (11th Cir. 2008). For instance, we have
indicated that “a defendant who has executed an effective waiver
does not subject himself to being sentenced entirely at the whim of
the district court.”
Id. (quotations omitted). Similarly, an appeal
waiver does not bar challenges to a sentence imposed in excess of
the statutory maximum or “based on a constitutionally
impermissible factor such as race.”
Id. (quotations omitted). And,
we have recognized that “in extreme circumstances—for instance,
if the district court had sentenced the defendant to a public
flogging—due process may require that an appeal be heard despite
a previous waiver.”
Id. (alterations adopted) (quotations omitted).
Crawford’s argument that the district court denied him his
constitutional right to due process and a fair sentencing hearing
when it denied his motion for a continuance so that he could obtain
the testimony of his wife in support of his request for a minor role
reduction does not fit within any of the previously identified
exceptions to a sentence-appeal waiver. Rather, his claim falls
within the category of garden variety constitutional challenges that
are barred by a valid sentence-appeal waiver. See, e.g., United
States v. Rubbo,
396 F.3d 1330, 1335 (11th Cir. 2005) (holding that
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6 Opinion of the Court 22-11632
Sixth Amendment claim under Apprendi v. New Jersey,
530 U.S.
466 (2000), was barred by sentence-appeal waiver); United States v.
Brown,
415 F.3d 1257, 1272 (11th Cir. 2005) (holding that the claim
that the statute under which the defendant was convicted violated
the non-delegation doctrine of Article I of the Constitution was
barred by an appeal waiver). And although Crawford asserts in
passing that the denial of his motion for a continuance resulted in
“a miscarriage of justice,” we have not adopted a miscarriage of
justice exception to appeal waivers.
Accordingly, Crawford’s valid sentence-appeal waiver bars
his claim, and we GRANT the government’s motion to dismiss.
APPEAL DISMISSED.
