USCA11 Case: 22-13013 Document: 36-1 Date Filed: 10/19/2023 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13013
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEVIN SHANE SOUFFRANC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60069-RKA-1
____________________
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2 Opinion of the Court 22-13013
____________________
No. 22-13044
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEVIN SHANE SOUFFRANC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:22-cr-60064-RKA-1
____________________
Before LAGOA, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
These consolidated cases are before us on the government’s
motions to dismiss Tevin Souffranc’s direct appeals based on the
sentence appeal waivers within his plea agreements. The
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22-13013 Opinion of the Court 3
government alternatively moves this Court for summary affir-
mance. Upon review of the record, we grant the government’s
motions to dismiss, and deny as moot the government’s motions
for summary affirmance.
I. FACTUAL BACKGROUND & PROCEDURAL
HISTORY
A. Southern District of Florida, Case No. 22-13013
In March 2021, a federal grand jury in the Southern District
of Florida returned an indictment charging Souffranc with one
count of attempted carjacking, two counts of substantive carjack-
ing, three counts of brandishing a firearm during a crime of vio-
lence, and one count each of kidnapping, bank robbery, attempted
kidnapping, and attempted bank robbery (herein after, “S.D. Fla.
case”).
In April 2022, Souffranc entered into a plea agreement with
the government in which he agreed to plead guilty to kidnapping,
bank robbery, carjacking, and two counts of brandishing a firearm
during a crime of violence, in exchange for, among other things,
the government dismissing the remaining charges. Regarding the
terms of imprisonment, the plea agreement explained that: the
two charges of brandishing a firearm during a crime of vio-
lence each carried a minimum term of imprisonment of
seven years and maximum term of life imprisonment; the kidnap-
ping charge carried a maximum term of life imprisonment; the
bank robbery charge carried a maximum term of imprisonment of
twenty years; and the carjacking charge carried a maximum term
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4 Opinion of the Court 22-13013
of imprisonment of fifteen years. It additionally informed
Souffranc that the two counts of brandishing a firearm during a
crime of violence had to run consecutively to each other and the
other charges, which would result in a minimum consecutive sen-
tence of fourteen years.
The plea agreement also included an appeal waiver which
informed Souffranc that he was waiving his right to appeal any sen-
tence imposed, any restitution order, or the manner in which the
sentence was imposed unless the sentence exceeded the maximum
permitted by law or was the result of an upward departure or var-
iance from the advisory guideline range. The plea agreement also
informed Souffranc that his appeal waiver did not impact the gov-
ernment’s right to appeal and explained that, should the govern-
ment appeal, Souffranc would be released from the waiver. Addi-
tionally, the plea agreement explained that Souffranc was waiving
his right to assert any claim that the statutes to which he was plead-
ing guilty were unconstitutional or that his admitted conduct was
outside the scope of those criminal statutes.
B. Middle District of Florida, Case No. 22-13044
In February 2022, the government filed an information in
the Middle District of Florida charging Souffranc with one count
of bank robbery and one count of attempted bank robbery.
Souffranc waived an indictment in that case and consented to trans-
fer the case to the Southern District of Florida to enter his plea and
be sentenced. (“M.D. Fla. case”).
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22-13013 Opinion of the Court 5
In April 2022, Souffranc entered a plea agreement wherein
he agreed to plead guilty to both counts in the M.D. Fla. case. In
exchange, the government agreed to recommend that the district
court sentence him concurrently with the sentences it imposed in
the S.D. Fla. case. Again, the plea agreement informed Souffranc
of the maximum terms of imprisonment he faced on each count—
twenty years’ imprisonment. It also included the same appeal wav-
ier from the S.D. Fla. case.
C. Consolidated Proceedings
Thereafter, the S.D. Fla. case and the M.D. Fla. case pro-
ceeded together. The district court then held a change of plea hear-
ing for both cases. Under oath, Souffranc testified that he was 28
years old, completed school through his freshman year of college,
read and wrote English, and was a citizen of the United States. He
stated that he had never been treated for addiction and was not un-
der the influence of any drugs or alcohol. He explained that he was
diagnosed with bipolar disorder and post-traumatic stress disorder
in 2019 and was receiving ongoing treatment, and that he took two
prescription medications for his bipolar disorder that he had not yet
taken that day. Souffranc expressed that he did not suffer from any
physical or mental condition that would prevent him from under-
standing everything during the plea colloquy.
As to the M.D. Fla. case, Souffranc confirmed that he under-
stood that he had the right to have a grand jury review the charges
against him and return an indictment, but he otherwise waived that
right when he waived the indictment. He confirmed that he
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6 Opinion of the Court 22-13013
understood the basis of the charges against him as outlined in the
information for the M.D. Fla. case and in the indictment for the S.D.
Fla. case. He stated that he spoke to his attorney about both cases,
including reviewing the charges and discussing possible defenses or
strategies, and confirmed that he was satisfied with his lawyer.
Next, the district court asked Souffranc if he had reviewed
the plea agreements with his lawyer and understood them, and
Souffranc confirmed that he had done so and had no questions. He
also stated that he understood that he was pleading guilty to the
counts outlined in both plea agreements. He acknowledged that,
in exchange for his guilty plea, the government agreed to dismiss
the remaining counts in his S.D. Fla. case. He also confirmed that
he understood that his sentence would be computed using the
United States Sentencing Guidelines, and he had discussed the
guidelines with his attorney. The district court informed Souffranc
that the guidelines were advisory and that the court was permitted
to impose a sentence within, below, or above the guidelines range.
It emphasized that it could impose a sentence on Souffranc that
was outside the high end of the guideline’s range, and that
Souffranc could not withdraw his guilty plea if that occurred,
which Souffranc confirmed he understood.
The district court discussed the minimum and maximum
terms of imprisonment Souffranc faced in both cases and empha-
sized that it could impose all penalties concurrent to or consecutive
with each other. It also informed Souffranc that two charges in the
S.D. Fla. case had to run consecutive to each other and all other
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22-13013 Opinion of the Court 7
counts. Souffranc affirmed that he understood the mandatory
minimum and maximum terms of imprisonment he faced.
As to the appeal waiver, the district court informed
Souffranc that both plea agreements included appeal waivers that
prohibited him from appealing the sentence that it imposed or the
manner in which it imposed the sentence. The court explained to
Souffranc that he was waiving his right to appeal the sentence, in-
cluding the terms of imprisonment, supervised release, fines, resti-
tution, forfeitures, and special assessments. The court also ex-
plained to Souffranc the three narrow exceptions to his appeal
waiver that would allow him to appeal his sentences.
Sourffranc confirmed his understanding of the entirety of
the appeal waivers and the exceptions. He also confirmed that no
one forced or threatened him to give up his appellate rights or
made any promises to him, other than what was in the plea agree-
ment, to convince him to waive his appellate rights, and he con-
firmed that he discussed his appeal waivers with his attorney.
Souffranc also confirmed that he was waiving his appellate rights
in exchange for the government’s offers in the plea agreements be-
cause he believed it was the best outcome in his case.
Ultimately, the district court found that Souffranc know-
ingly, intentionally, and voluntarily waived his right to appeal; that
his appeal waiver was not made due to threats of force or coercion,
inappropriate promises or guarantees; and the waiver was made af-
ter adequate consultation with counsel. The district court further
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8 Opinion of the Court 22-13013
informed Souffranc of the trial rights that he was waiving by plead-
ing guilty, which Souffranc stated that he understood.
The government set forth the factual basis for the charges in
both cases. Following a small correction, Souffranc agreed that the
factual basis was true and that the government could prove his guilt
beyond a reasonable doubt as to the charged offenses. Souffranc
pled guilty to all counts included in the plea agreements, and the
district court adjudicated him guilty after finding that he was com-
petent and capable of entering an informed plea and the plea was
supported by an independent factual basis.
Before sentencing, a probation officer prepared a presen-
tence investigation report (“PSI”), which calculated Souffranc’s
guideline sentences. The PSI calculated a total offense level of 32
and a criminal history category of V, putting the guideline sentenc-
ing range as 188 to 235 months’ imprisonment for all charges in
both cases, except the two firearms offenses in the S.D. Fla. case.
As to the firearm offenses, Souffranc’s minimum term of imprison-
ment was seven years, his maximum term was life, and each had to
run consecutively to each other and any other term of imprison-
ment.
Souffranc objected, in relevant part, to the two-level en-
hancement he received for injuring the victim of his carjacking. At
sentencing, the government opposed Souffranc’s objection and
presented the victim to testify about the injuries she sustained. Ul-
timately, the district court overruled Souffranc’s objection because
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22-13013 Opinion of the Court 9
the victim’s testimony was undisputed, and it believed the victim’s
testimony was true as to the nature and extent of her injuries.
The district court then determined that Souffranc’s offense
level was 32 and his criminal history category was V, resulting in a
guideline sentencing range of 188 to 235 months’ imprisonment.
The probation officer noted that, in addition to the guideline range,
Souffranc faced an additional consecutive 168 months’ imprison-
ment.
The court ultimately sentenced Souffranc to a total of 360
months’ imprisonment. The sentence consisted of 192 months as
to the kidnapping, bank robbery, and carjacking charges, to be
served concurrently with each other, and eighty-four months as to
each firearm offense, to run consecutively to each other and to the
kidnapping, bank robbery, and carjacking charges. As to M.D. Fla.
Case, the court imposed 192 months’ imprisonment for each
count, to run concurrently with the sentences for the S.D. Fla.
case’s kidnapping, bank robbery, and carjacking charges, and con-
secutively to the S.D. Fla. case’s firearm offenses. The district court
also imposed three years of supervised release as to all counts, set
to run concurrently. Finally, the district court denied Souffranc’s
request for a variance, citing Souffranc’s violent criminal history,
specifically of violence against women, and the victims in the pre-
sent case. Despite his appeal waivers, these appeals followed.
II. ANALYSIS
We review de novo a sentence appeal waiver’s validity. United
States v. Johnson,
541 F.3d 1064, 1066 (11th Cir. 2008). A sentence
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10 Opinion of the Court 22-13013
appeal waiver will be enforced if it was made knowingly and vol-
untarily.
Id. 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; or (2)
the record makes clear that the defendant otherwise understood
the full significance of the waiver.”
Id. (citing United States v. Bush-
ert,
997 F.2d 1343, 1351 (11th Cir. 1993)).
“[T]he touchstone for assessing” whether a defendant en-
tered a waiver knowingly and voluntarily is whether the district
court “clearly conveyed to the defendant that he was giving up his
right to appeal under most circumstances.” United States v. Boyd,
975 F.3d 1185, 1192 (11th Cir. 2020) (brackets and emphasis omit-
ted) (quoting Bushert,
997 F.2d at 1352-53). An appeal waiver may
waive “the right to appeal difficult or debatable legal issues or even
blatant error.”
Id. at 1191 n.5 (internal quotation marks omitted)
(quoting United States v. Grinard-Henry,
399 F.3d 1294, 1296 (11th
Cir. 2005)). Further, 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 do not except it from the
waiver.” United States v. Bascomb,
451 F.3d 1292, 1296 (11th Cir.
2006).
However, a sentence appeal waiver does not completely bar
appellate review because review may be available despite a valid
appeal waiver when the defendant was “sentenced entirely at the
whim of the district court,” above the statutory maximum, or
based on a constitutionally impermissible factor. Johnson, 541 F.3d
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22-13013 Opinion of the Court 11
at 1068 (internal quotation marks omitted) (quoting Bushert,
997
F.2d at 1350). We have also noted that extreme circumstances, “for
instance, if the district court had sentenced [the defendant] to a
public flogging,” may implicate due process and require that the
defendant be allowed to appeal despite a valid appeal waiver.
Id.
(internal quotation marks omitted) (quoting United States v. Howle,
166 F.3d 1166, 1169 n.5 (11th Cir. 1999)). Nevertheless, a defendant
is “free to bargain away his right to raise constitutional issues” on
appeal. Bascomb, 451 F.3d at 1297.
Here, Souffranc appeals his convictions despite his appeal
waivers, arguing that: the district court violated his due process
rights by relying on the victim’s statements during the sentencing
hearing; carjacking is not a qualifying crime of violence under
18
U.S.C. § 924(c); the district court did not adequately explain his ap-
peal waiver; and that, regardless of the appeal waiver, this Court
should review his challenges in the interest of justice. The govern-
ment moves to dismiss Souffranc’s appeals due to his appeal waiv-
ers, and alternatively moves for summary affirmance.
We grant the government’s motions to dismiss because
Souffranc knowingly and voluntarily entered into the appeal waiv-
ers contained within his plea agreements and none of his argu-
ments fall within the narrow exceptions that allow him to appeal.
The district court extensively examined Souffranc to ensure he un-
derstood the terms and consequences of the appeal waivers.
Souffranc’s responses clearly indicated that he understood the ap-
peal waivers and intended to enter into the plea agreements.
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12 Opinion of the Court 22-
13013
Johnson, 541 F.3d at 1066; Boyd, 975 F.3d at 1192. Souffranc’s chal-
lenges against the district court’s consideration of the victim’s
statements during sentencing and his carjacking conviction fall di-
rectly within the types of issues he knowingly and voluntarily
agreed he could not raise on appeal.
Therefore, because (1) Souffranc’s sentences fall within the
guidelines range, (2) the district court did not sentence him above
the statutory maximum, and (3) the government did not appeal,
Souffranc’s challenges to his sentences fall outside the enumerated
exceptions to his appeal waiver. Thus, the government’s motions
to dismiss based on the appeal waiver are due to be granted, and
we have no need to consider the government’s alternative motions
for summary affirmance.
III. CONCLUSION
For the reasons set forth above, we GRANT the govern-
ment’s motions to dismiss Souffranc’s appeals, and DENY AS
MOOT the government’s motions for summary affirmance. 1
1 The government also moved to stay the briefing schedule, which is denied
as moot.
