USA v. Jacob Montgomery Gibson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10275
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACOB MONTGOMERY GIBSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cr-00293-MLB-1
____________________
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2 Opinion of the Court 22-10275
Before LAGOA , BRASHER , and ANDERSON, Circuit Judges.
PER CURIAM:
Jacob Gibson appeals his 168-month sentence for distribu-
tion of a visual depiction of a minor engaging in sexually explicit
conduct, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), arguing
that this sentence was substantively unreasonable because the dis-
trict court failed to consider mitigating evidence and erroneously
enhanced his sentence based on a pattern of activity involving the
sexual abuse or exploitation of a minor. The government, in turn,
moves to dismiss his appeal pursuant to a sentence appeal waiver.
The record shows that, during the plea hearing, the district
court explained to Gibson that he could appeal only under the fol-
lowing three exceptions: (1) if he received an above-guidelines sen-
tence; (2) if the government appealed; or (3) if he believed that his
counsel had provided constitutionally ineffective assistance. The
district court asked Gibson if he understood that, “other than those
situations, [he was] giving up [his] right to appeal.” Gibson con-
firmed that he understood the waiver. Gibson’s attorney also con-
firmed that he had discussed the appeal waiver with Gibson and
believed that it was in his best interest. Gibson pled guilty and tes-
tified that he was doing so freely and voluntarily. The district court
found that he was fully competent, understood the consequences
of his plea, and was pleading guilty knowingly and voluntarily.
The district court then accepted the plea.
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22-10275 Opinion of the Court 3
Because Gibson knowingly and voluntarily entered his ap-
peal waiver after confirming that he had read and understood the
plea agreement, and his arguments on appeal do not fall into one
of the three listed exceptions contained in the plea agreement, the
Government’s motion to dismiss this appeal pursuant to the appeal
waiver in Appellant’s plea agreement is GRANTED, and the appeal
is DISMISSED.
See United States v. Bushert, 997 F.2d 1343, 1350–
51 (11th Cir. 1993) (explaining that a sentence appeal waiver will be
enforced if it was made knowingly and voluntarily);
United States
v. Bascomb, 451 F.3d 1292, 1297 (11th Cir. 2006) (“[An] appeal
waiver cannot be vitiated or altered by comments the court makes
during sentencing.”);
United States v. Grinard-Henry, 399 F.3d
1294, 1296 (11th Cir. 2005) (explaining that the waiver of the right
to appeal includes waiver of the right to appeal difficult or debata-
ble legal issues or even blatant error).
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