United States v. Jeffery McBride

USCA11 Case: 21-13290 Date Filed: 06/01/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13290
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFERY MCBRIDE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:20-cr-00020-CDL-MSH-1
____________________
USCA11 Case: 21-13290 Date Filed: 06/01/2022 Page: 2 of 4
2 Opinion of the Court 21-13290
Before ROSENBAUM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Jeffery McBride appeals his sentence of 168 months of im-
prisonment after pleading guilty to possession of methampheta-
mine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). He challenges the calculation of his guideline range
under the Sentencing Guidelines, arguing that the district court
erred in applying a two-level enhancement for possessing a firearm
under U.S.S.G. § 2D1.1(b)(1).
The government moves to dismiss the appeal based on a
sentence-appeal waiver in McBride’s plea agreement. In exchange
for certain promises by the government, McBride expressly agreed
in the plea agreement to
waive[] any right to appeal the imposition of sentence
upon [him] . . . except in the event that the District
Court impose[d] a sentence that exceed[ed] the advi-
sory guideline range as that range has been calculated
by the District Court at the time of sentencing, or in
the event that the District Court impose[d] a sentence
in excess of the statutory maximum.
McBride would also be released from the waiver if the government
appealed. McBride has not responded to the government’s mo-
tion.
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21-13290 Opinion of the Court 3
We will enforce an appeal waiver that was made knowingly
and voluntarily. United States v. Bascomb, 451 F.3d 1292, 1294
(11th Cir. 2006); United States v. Bushert, 997 F.2d 1343, 1350–51
(11th Cir. 1993). To prove that a waiver was made knowingly and
voluntarily, the government must show 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 oth-
erwise understood the full significance of the waiver. Bushert, 997
F.2d at 1351.
Here, McBride knowingly and voluntarily waived the right
to appeal his sentence. During the plea colloquy, the district court
reviewed the terms of the plea agreement with McBride, including
the appeal waiver. Among other things, the court made clear, and
McBride indicated he understood, that he was waiving the right to
directly appeal a sentence within the guideline range, even if the
court “miscalculate[d] [his] guideline range[,] as long as [it] sen-
tence[d] [him] within the guideline range.” The record also shows
that McBride and his attorney signed the plea agreement, certifying
that they had read the entire agreement and fully understood its
terms, and McBride initialed beneath each page.
Because the record shows that the appeal waiver was made
knowingly and voluntarily, we will enforce the waiver and dismiss
the appeal. See Bascomb, 451 F.3d at 1294; Bushert, 997 F.2d at
1351. McBride’s challenge to the calculation of his guideline range
falls within the scope of the waiver, which waived review of such
challenges unless the court “exceed[ed] the advisory guideline
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4 Opinion of the Court 21-13290
range as that range has been calculated by the District Court at the
time of sentencing.” The sentence of 168 months was within the
guideline range as calculated by the court, so the waiver applies.
Accordingly, we GRANT the government’s motion to dis-
miss and DISMISS the appeal.