United States v. Racquel Lavette Bijou

USCA11 Case: 21-14443 Document: 30-1 Date Filed: 02/14/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14443
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RACQUEL LAVETTE BIJOU,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20535-AHS-2
____________________
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2 Opinion of the Court 21-14443
Before JORDAN, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
Racquel Lavette Bijou appeals her 168-month sentence for
sex trafficking of a minor. On appeal, Bijou argues that: (1) the dis-
trict court erred in applying a two-level increase to her offense level
under the Guidelines for unduly influencing a minor to engage in
prohibited sexual conduct; (2) the district court erred in applying a
two-level increase to the offense level based on its finding that Bi-
jou knew or should have known that the victim was a vulnerable
victim; and (3) her sentence was substantively unreasonable. In re-
sponse, the government argues that the appeal should be dismissed
pursuant to the valid and enforceable appeal waiver in Bijou’s plea
agreement. After careful review, we dismiss the appeal.
We review the validity of a sentence appeal waiver de novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We
also review de novo whether a defendant knowingly and voluntar-
ily waived her right to appeal her sentence. United States v. Beni-
tez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).
Plea agreements “are like contracts and should be inter-
preted in accord with what the parties intended.” United States v.
Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005). A sentence appeal
waiver will be enforced if it was made knowingly and voluntarily.
United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). To
establish that a sentence appeal waiver was made knowingly and
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21-14443 Opinion of the Court 3
voluntarily, the government must show either that: (1) the district
court specifically questioned the defendant about the waiver dur-
ing the plea colloquy; or (2) the record makes clear that the defend-
ant otherwise understood the full significance of the waiver. Id.;
see also Fed. R. Crim. P. 11(b)(1)(N) (requiring that the district
court inform the defendant of the terms of an appeal waiver). The
touchstone for assessing this question is whether it was clearly con-
veyed to the defendant that she was giving up her right to appeal
under most circumstances. United States v. Boyd, 975 F.3d 1185,
1192 (11th Cir. 2020). We’ve concluded that an appeal waiver was
enforceable when the waiver was referenced during the plea collo-
quy and the defendant confirmed that she understood the provi-
sion and had entered into it freely and voluntarily. United States v.
Weaver, 275 F.3d 1320, 1323–24, 1333 (11th Cir. 2001). “There is a
strong presumption that the statements made during [a plea] col-
loquy are true.” United States v. Medlock, 12 F.3d 185, 187 (11th
Cir. 1994).
We’ve never adopted a general “miscarriage of justice” ex-
ception to the rule that valid appeal waivers must be enforced ac-
cording to their terms. United States v. King, 41 F.4th 1363, 1368
n.3 (11th Cir. 2022). Moreover, we’ve said that appeal waivers ap-
ply “not only to frivolous claims, but also to difficult and debatable
legal issues.” United States v. DiFalco, 837 F.3d 1207, 1215 (11th
Cir. 2016). However, a defendant who has agreed to a sentence
appeal waiver does not subject herself to being sentenced entirely
at the whim of the district court. See Bushert, 997 F.2d at 1350.
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4 Opinion of the Court 21-14443
Some sentences, including those imposed above the statutory max-
imum or based on a constitutionally impermissible factor like race,
may never be waived. Id. at 1350 n.18; see also Johnson, 541 F.3d
at 1068 (observing that a sentence that implicated serious due pro-
cess concerns, “for instance . . . a public flogging,” may trigger re-
view notwithstanding a valid waiver (quotations omitted)). But,
notably, the recognized exceptions to the enforceability of appeal
waivers are “few and sharply defined.” King, 41 F.4th at 1367.
Here, Bijou’s substantive arguments challenging the en-
hancements and reasonableness of her sentence are barred by the
appeal waiver in her plea agreement. Because Bijou’s appeal
waiver broadly waived her right to appeal her sentence or the man-
ner in which it was imposed, her challenges on appeal to the “un-
due influence” and “vulnerable victim” enhancements to her
guideline calculations and to the substantive reasonableness of her
168-month sentence all fall within the scope of the waiver.
As the record reflects, Bijou’s plea agreement allowed only
three narrow exceptions to the waiver, where: (1) her sentence ex-
ceeded the maximum permitted by statute; (2) the sentence was
the result of an upward departure or an upward variance from the
advisory guideline range established at sentencing; or (3) the gov-
ernment appealed the sentence. However, her sentence was at the
low end of the guideline range of 168 to 210 months’ imprisonment
and below the statutory maximum sentence of life imprisonment,
and the government did not appeal her sentence. As a result, none
of the exceptions to the waiver apply.
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21-14443 Opinion of the Court 5
Because the appeal waiver bars Bijou’s arguments, she can
prevail only if it is unenforceable. On appeal, Bijou says that the
waiver was unenforceable because she did not “fully understand”
its significance. But the record shows that the district court fully
complied with the requirements of Rule 11(b)(1)(N) when it en-
gaged in a thorough discussion of the appeal waiver contained in
Bijou’s plea agreement. At the plea colloquy, Bijou affirmed that
she read the entirety of the plea agreement and understood “every
word.” In addition, the court engaged in an extensive discussion
about the appeal waiver “to make sure” that Bijou understood the
rights she was surrendering. And when Bijou said at one point that
she did not understand the exceptions to the appeal waiver, the
court provided a further explanation and Bijou ultimately con-
firmed her understanding. She also indicated that she “fully dis-
cussed the waiver” with her counsel and that her counsel answered
all of her questions. We presume that Bijou’s statements under
oath at the plea colloquy were true. Medlock, 12 F.3d at 187. Thus,
on this record, we conclude that Bijou entered her plea knowingly
and voluntarily. See Boyd, 975 F.3d at 1192;Weaver, 275 F.3d at
1323–24, 1333.
As for Bijou’s argument that she did not receive the benefit
of the bargain by pleading guilty because she only received a sen-
tence that was one year below the mandatory minimum for the
charge she pled down from, we are unpersuaded. The plea agree-
ment, which she said she understood, provided that the district
court was not bound by any recommendations or the guideline
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6 Opinion of the Court 21-14443
range and could sentence her up to the statutory maximum of life
imprisonment. Moreover, the agreement indicated that any esti-
mation or recommendation was merely a prediction, not a prom-
ise, and Bijou would not be allowed to withdraw her plea if she
received a higher sentence than what she expected. The fact that
Bijou did not receive the sentence that she had hoped for does not
affect the validity of her appeal waiver or her guilty plea.
Bijou adds that we should not enforce the appeal waiver to
avoid a “miscarriage of justice.” However, we’ve recognized only
a “few and sharply defined” exceptions to the enforcement of an
appeal waiver, none of which apply here, and we’ve never recog-
nized a “miscarriage of justice” exception. See King, 41 F.4th at
1367–68 n.3. In any event, it is unlikely that any “miscarriage of
justice” exception would apply here. Bijou received a sentence at
the low end of the guideline range and well below the statutory
maximum of life imprisonment. As for her discussion of her diffi-
cult life circumstances, this argument goes to the reasonableness of
her sentence, and our case law directs us to apply appeal waivers
even “to difficult and debatable issues.” DiFalco, 837 F.3d at 1215.
Accordingly, Bijou’s appeal is barred by the appeal waiver in her
plea agreement, and we dismiss the appeal.
DISMISSED.