USA v. Keo Ibua Mike

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14226
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEO IBUA MIKE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:21-cr-00041-JA-PRL-1
____________________
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2 Opinion of the Court 22-14226
Before ROSENBAUM, J ILL PRYOR , and G RANT, Circuit Judges.
PER CURIAM:
Appellant Keo Mike wishes to appeal his 96-month sentence
despite having knowingly and voluntarily entered into a plea
agreement that bars him from doing so. Because the plea
agreement controls, we grant the government’s motion to dismiss
Mike’s appeal.
When a defendant appeals his sentence despite an appeal
waiver, the government may file a motion to dismiss the appeal.
United States v. Boyd, 975 F.3d 1185, 1190 (11th Cir. 2020). That
motion will be granted so long as the appeal waiver
unambiguously bars the appeal and the defendant agreed to waive
his right to appeal knowingly and voluntarily. Id. Knowing and
voluntary waiver is satisfied where a district court “specifically
discussed the sentence appeal waiver with the defendant.” United
States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).
Mike’s appeal is barred by the plea agreement. Mike pleaded
guilty to knowingly possessing a firearm as a convicted felon and
was accordingly sentenced to 96 months in prison. Mike’s plea
agreement clearly states that a defendant agrees to waive the right
of appeal except in four circumstances: if the sentence exceeds the
applicable guidelines range, if the sentence exceeds the statutory
maximum penalty, if the sentence violates the Eighth Amendment,
or if the government appeals. Mike does not appeal his sentence
under any of these exceptions; rather, he appeals solely on the basis
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22-14226 Opinion of the Court 3
that his sentence is substantively unreasonable because the
magistrate judge declined to grant a downward departure. Mike
also does not contend that he unknowingly or involuntarily waived
his right to appeal; rather, the record shows the opposite as the
magistrate judge specifically questioned Mike about the waiver
during his appeal. See Bushert, 997 F.2d at 1351.
* * *
Because the plea agreement is enforceable and
unambiguously bars Mike’s appeal, we GRANT the government’s
motion and DISMISS Mike’s appeal.
APPEAL DISMISSED.
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