USA v. Nikolas James Cook

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13739
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NIKOLAS JAMES COOK,
a.k.a. Nikolas Cook,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cr-14007-KMM-1
____________________
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2 Opinion of the Court 21-13739
Before WILSON, J ILL PRYOR , and BRANCH, Circuit Judges.
PER CURIAM:
Nikolas Cook pleaded guilty, pursuant to a written plea
agreement containing a sentence-appeal waiver, to three counts of
child-pornography related charges.1 The district court imposed
consecutive statutory maximum terms of imprisonment on each
count, for a total of 840 months’ imprisonment. Cook appeals,
arguing that his sentence is procedurally and substantively
unreasonable. The government moves to dismiss this appeal
pursuant to the sentence-appeal waiver. Cook opposes the motion,
arguing that the appeal waiver is ambiguous because it did not
specify that he would be unable to appeal the district court’s
decision to run his sentences consecutively. After review, we
conclude that the appeal waiver is unambiguous, valid, and
enforceable. Therefore, we grant the government’s motion to
dismiss.
Cook’s written plea agreement informed him of the
statutory maximums for each offense, and that those “sentences of
imprisonment may be run consecutively, for a total of 70 years’
1 Specifically, Cook pleaded guilty to production of material containing visual
depictions of sexual exploitation of minors (Count 4); distribution of material
containing visual depictions of sexual exploitation of minors (Count 5); and
possession of matter containing visual depictions of sexual exploitation of
minors (Count 6). In exchange for Cook’s plea, the government agreed to
dismiss three other counts related to child pornography.
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21-13739 Opinion of the Court 3
imprisonment.” The agreement also contained the following
sentence-appeal waiver:
The defendant is aware that Title 28, United States
Code, Section 1291 and Title 18, United States Code,
Section 3742 afford the defendant the right to appeal
the sentence imposed in this case. Acknowledging
this, in exchange for the undertakings made by the
United States in this plea agreement, the defendant
hereby waives all rights conferred by Sections 1291
and 3742 to appeal any sentence imposed, including
any restitution order, or to appeal the manner in
which the sentence was imposed, unless the sentence
exceeds the maximum permitted by statute or is the
result of an upward departure and/or an upward
variance from the advisory guideline range that the
Court establishes at sentencing. The defendant
further understands that nothing in this agreement
shall affect the government’s right and/or duty to
appeal as set forth in Title 18, United States Code,
Section 3742(b) and Title 28, United States Code,
Section 1291. However, if the United States appeals
the defendant’s sentence pursuant to Sections 3742(b)
and 1291, the defendant shall be released from the
above waiver of his right to appeal his sentence. The
defendant further hereby waives all rights conferred
by Title 28, United States Code, Section 1291 to assert
any claim that (l) the statutes to which the defendant
is pleading guilty are unconstitutional; and that
(2) the admitted conduct does not fall within the
scope of the statutes of conviction. By signing this
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4 Opinion of the Court 21-13739
agreement, the defendant acknowledges that the
defendant has discussed the appeal waiver set forth in
this agreement with the defendant’s attorney. The
defendant further agrees, together with this Office, to
request that the Court enter a specific finding that the
defendant’s waiver of his right to appeal the sentence
imposed in this case and his right to appeal his
conviction in the manner described above was
knowing and voluntary.
At the change-of-plea hearing, the magistrate judge2
confirmed that Cook read the agreement in its entirety, understood
it, and signed it. The magistrate judge cautioned that Cook would
be bound by “every word of this agreement” and Cook confirmed
that he understood. The magistrate judge then reviewed the
applicable statutory minimum and maximum sentences for each
count,3 and informed Cook that the sentences “may be run
consecutively for a total of 70 years’ imprisonment. Again, Cook
affirmed that he understood.
The magistrate judge then read the appeal-waiver provision
in its entirety into the record. Cook confirmed that he had
discussed the provision with his counsel, that he understood it, and
2 Cook consented to the magistrate judge taking his plea.
3 Count 4 carried a statutory minimum term of 15 years’ imprisonment and a
maximum of 30 years’ imprisonment. Count 5 carried a statutory minimum
term of 5 years’ imprisonment and a statutory maximum of 20 years’
imprisonment. Count 6 carried a statutory maximum of 20 years’
imprisonment.
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21-13739 Opinion of the Court 5
that he agreed to waive his right to appeal. Accordingly, the
magistrate judge entered a finding that Cook’s waiver of his right
to appeal was knowing and voluntary.
The magistrate judge also informed Cook that the sentence
imposed might be different from any estimate Cook’s lawyer may
have provided, and that the sentence could be more or less severe
than Cook anticipated. The magistrate judge reiterated that the
district court had the authority to sentence Cook “up to the
statutory maximum penalty permitted by law, which, as we
discussed from your plea agreement, is up to 70 years.” The
magistrate judge further emphasized that, by entering his plea,
Cook was “waiving or giving up [his] right to appeal all or part of
the sentence imposed by the Court except under the limited
circumstances we talked about in your plea agreement.” Cook
again confirmed that he understood. Accordingly, the district
court accepted Cook’s plea, finding that it was knowing and
voluntary.
The district court imposed the statutory maximum term of
imprisonment on each respective count and ordered that the
sentences run consecutively, for a total of 840 months’
imprisonment.4 At the end of the sentencing hearing, the district
court stated that Cook had the right to appeal the sentence. This
appeal followed.
4 Cook’s advisory guidelines range was the statutory maximum of 840 months’
imprisonment.
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6 Opinion of the Court 21-13739
Cook argues that the sentence-appeal waiver is ambiguous
because it refers to a limitation of appellate rights “unless the
sentence exceeds the maximum permitted by statute,” which does
not contemplate the possibility of statutory maximum sentences
run consecutively. Rather, he argues that a reasonable reading of
this language suggests his appeal would not be barred if his
sentence exceeded 30 years—
i.e., the highest statutory maximum
sentence he faced on Count 4. In support of his argument, he
points out that, during the change-of-plea hearing, the court did
not discuss the meaning of the referenced “unless the sentence
exceeds the maximum permitted by statute” language in the
sentence-appeal waiver. And he notes that at sentencing that the
district court informed him that he had a right to appeal.
We interpret the language of a plea agreement according to
its plain and ordinary meaning.
See United States v. Hardman, 778
F.3d 896, 900 (11th Cir. 2014) (“The language of a plea agreement
should be given its ordinary and natural meaning unless the parties
indicate otherwise.”);
United States v. Rubbo, 396 F.3d 1330, 1334
(11th Cir. 2005) (explaining that the terms of plea agreements
should be interpreted according to “their usual and ordinary
meaning”). “[I]n determining the meaning of disputed terms, the
court applies an objective standard and eschews both ‘a hyper-
technical reading of the written agreement’ and ‘a rigidly literal
approach in the construction of the language.’”
Hardman, 778 F.3d
at 900 (quoting
United States v. Copeland, 381 F.3d 1101, 1105
(11th Cir. 2004)). “When a plea agreement is ambiguous, it must
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21-13739 Opinion of the Court 7
be read against the government.”
Copeland, 381 F.3d at 1105–06
(quotation omitted)).
We must determine the meaning of “the maximum
permitted by statute” as used in Cook’s plea agreement. The
Supreme Court’s decision in
United States v. LaBonte, 520 U.S. 751
(1997), is instructive. In that case, the Supreme Court interpreted
the meaning of the phrase “maximum term authorized” as used in
an amendment to the Sentencing Guidelines and held that the
phrase “should be construed as requiring the ‘highest’ or ‘greatest’
sentence allowed by statute.”
Id. at 758. In reaching that
conclusion, the Supreme Court expressly rejected the argument
that Cook makes here—that the “‘maximum term authorized’
refers only to the highest penalty authorized by the offense of
conviction.”
Id. Rather, the Supreme Court explained that the
“maximum term authorized” is the base term prescribed for a
specific offense plus any statutory sentencing enhancements.
Id. at
758–59. District courts are authorized by statute to run multiple
terms of imprisonment imposed at the same time consecutively or
concurrently.
See 18 U.S.C. § 3584(a). Thus, we have repeatedly
interpreted the maximum statutory sentence as the total aggregate
statutory maximum for multiple offenses.
See, e.g.,
United States
v. Davis, 329 F.3d 1250, 1254 (11th Cir. 2003) (holding that
Apprendi5 does not prohibit a sentencing court from imposing
5 In
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held
that “[o]ther than the fact of a prior conviction, any fact that increases the
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8 Opinion of the Court 21-13739
consecutive sentences on multiple counts of conviction as long as
each is within the applicable statutory maximum);
United States v.
Hester, 287 F.3d 1355, 1357 (11th Cir. 2002) (explaining that
statutory maximum for purposes of
Apprendi is “the aggregate
statutory maximum for the multiple convictions”);
United States v.
Smith, 240 F.3d 927, 930 (11th Cir. 2001) (holding the sentence does
not exceed the statutory maximum and there is no
Apprendi error
where the sentence imposed is less than the aggregate statutory
maximum for multiple convictions). It follows necessarily that the
plain meaning of the term “maximum permitted by statute” as
used in Cook’s plea agreement is the statutory maximum for each
count in the aggregate.
Cook’s plea agreement and change-of-plea hearing further
support this interpretation. The plea agreement contained a
provision that set forth the applicable statutory maximums for each
offense, and it stated that those “sentences of imprisonment may
be run consecutively, for a total of 70 years’ imprisonment.” Cook
affirmed that he read the agreement, understood it, and he signed
it. And during the change-of-plea hearing, the magistrate judge
reviewed the applicable statutory maximum sentences for each
count, and informed Cook multiple times that those sentences
“may be run consecutively for a total of 70 years’ imprisonment.
Cook again confirmed that he understood. These statements
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
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21-13739 Opinion of the Court 9
undermine Cook’s contention that he did not understand that the
“maximum permitted by statute” as contemplated by the sentence-
appeal waiver in his plea agreement meant 70 years’ imprisonment.
Finally, we note that we have previously rejected a similar claim
that the imposition of consecutive sentences exceeds the statutory
maximum or the guidelines range and is therefore not barred by an
otherwise enforceable sentence-appeal waiver.
See United States
v. Segarra, 582 F.3d 1269, 1272–73 (11th Cir. 2009) (holding that the
imposition of consecutive sentences did not exceed the statutory
maximum or the applicable guidelines range, and, therefore,
defendant’s claim was barred by valid appeal waiver).
Accordingly, Cook’s sentence-appeal waiver bars his claim
provided that it is valid and enforceable.
We enforce appeal waivers that are made knowingly and
voluntarily.
See 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 demonstrate that a waiver was made
knowingly and voluntarily, 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.
Bushert, 997 F.2d at 1351.
Here, the district court expressly questioned Cook about the
waiver during the plea colloquy, and he stated that he understood
the waiver. Accordingly, the waiver was knowingly and
voluntarily made and is enforceable.
Id;
see also United States v.
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10 Opinion of the Court 21-13739
Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001) (enforcing an appeal
waiver where “the waiver provision was referenced during [the
defendant’s] Rule 11 plea colloquy and [the defendant] agreed that
she understood the provision and that she entered into it freely and
voluntarily”).
It is well-established that an appeal waiver “cannot be
vitiated or altered by comments the court makes during
sentencing.”
United States v. Bascomb, 451 F.3d 1292, 1297 (11th
Cir. 2006). Thus, the district court’s statement at the end of the
sentencing hearing that Cook had a right to appeal the sentence,
had no effect on the appeal waiver.
Id.;
United States v. Howle,
166 F.3d 1166, 1168–69 (11th Cir. 1999).
Accordingly, Cook’s procedural and substantive
reasonableness challenges to his within-Guidelines statutory
maximum sentence do not fall within any of the exceptions to his
valid sentence-appeal waiver. Consequently, we GRANT the
government’s motion to dismiss.
APPEAL DISMISSED.
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