USA v. Michael Theron Beaver

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11227
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL THERON BEAVER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cr-00104-RBD-EJK-1
____________________
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2 Opinion of the Court 22-11227
Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
The Government’s motion to dismiss this appeal pursuant
to the appeal waiver in Appellant’s plea agreement is GRANTED.
See United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)
(sentence appeal waiver will be enforced if it was made knowingly
and voluntarily);
United States v. Boyd, 975 F.3d 1185, 1192 (11th
Cir. 2020) (sentence appeal waiver will be enforced where “it was
clearly conveyed to the defendant that he was giving up his right
to appeal under
most circumstances” (quotation marks and brack-
ets omitted));
United States v. Weaver, 275 F.3d 1320, 1333 (11th
Cir. 2001) (sentence appeal waiver will be enforced where the
waiver provision was referenced during the change of plea hearing
and the defendant agreed that he understood and entered the pro-
vision freely and voluntarily).
Here, Beaver’s sentence appeal waiver was made knowingly
and voluntarily. During the plea colloquy, the magistrate judge
advised Beaver that he had waived the right to directly appeal his
sentence unless one of the four exceptions in the plea agreement
applied. The magistrate judge read each of the exceptions to Bea-
ver, and he confirmed that he understood them. Further, the court
received confirmation that Beaver was making his appeal waiver
freely and voluntarily. By explaining the appeal waiver provision
and its exceptions, the court effectively conveyed that Beaver was
giving up his right to appeal his sentence under most
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22-11227 Opinion of the Court 3
circumstances.
Boyd, 975 F.3d at 1192. Therefore, the appeal
waiver was made knowingly and voluntarily and should be en-
forced.
See Bushert, 997 F.2d at 1351. Further, none of the excep-
tions apply because Beaver ‘s sentence of 77 months’ imprisonment
was not greater than the statutory maximum of 10 years’ imprison-
ment, his sentence was not above the guidelines range as calculated
by the district court of 77-96 months, the sentence does not violate
the Eighth Amendment, and the government has not appealed.
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