USA v. Amy Berg

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 20-10360
Non-Argument Calendar
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D.C. Docket No. 3:19-cr-00001-CAR-CHW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AMY BERG,

Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(May 6, 2020)

Before JORDAN, NEWSOM and MARCUS, Circuit Judges.

PER CURIAM:
The Government’s motion to dismiss this appeal pursuant to the appeal
waiver in Appellant’s plea agreement is GRANTED. As the record reflects, Berg
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knowingly and voluntarily waived her right to appeal her sentence. The district
court specifically questioned Berg about the waiver during her plea colloquy, and
explained that, by entering into the plea agreement, Berg was waiving her right to
appeal her sentence, except under limited circumstances. Berg initialed the pages
containing the appeal waiver, signed the appeal waiver under a statement that she
fully understood the terms of her plea agreement, and stated at the change of plea
hearing that she understood the terms of the plea agreement. Berg also said that
she understood she was, in fact, waiving her right to appeal her sentence. Thus,
Berg knowingly and voluntarily waived her right to appeal her sentence. See
United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993) (holding that a
sentence appeal waiver will be enforced if it was made knowingly and voluntarily).
In addition, none of the exceptions to Berg’s appeal waiver apply. First, the
district court did not impose a sentence above the established guideline range
because it calculated the guideline range as 210 to 240 months’ and only sentenced
Berg to 210 months’ imprisonment. Moreover, Berg’s 210-month sentence is
below the 20-year statutory maximum. See 21 U.S.C. § 841(b)(1)(C). Finally, the
government has not appealed Berg’s sentence, and she has not attempted to attack
her sentence collaterally based on ineffective assistance of counsel. Thus, none of
the exceptions to Berg’s appeal waiver apply, and even though she claims to be
raising meritorious issues, an appeal waiver includes a waiver of the right to appeal
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difficult or debatable legal issues or even blatant error. See United States v.
Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (holding that the waiver of
the right to appeal includes the waiver of the right to appeal difficult or debatable
legal issues or even blatant error).
DISMISSED.
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