USA v. Derek Lajuan Winston

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11795
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEREK LAJUAN WINSTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:22-cr-00024-TFM-MU-1
____________________
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2 Opinion of the Court 22-11795
Before N EWSOM , G RANT, 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.
A sentence appeal waiver will be enforced if it was made knowingly
and voluntarily.
See United States v. Bushert, 997 F.2d 1343, 1350–
51 (11th Cir. 1993) (sentence appeal waiver will be enforced if it
was made knowingly and voluntarily);
United States v. Grinard-
Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (waiver of the right to
appeal includes waiver of the right to appeal difficult or debatable
legal issues or even blatant error). To establish that the waiver was
made knowingly and voluntarily, the government must show ei-
ther that: (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.
During the plea colloquy, the district court specifically ques-
tioned Winston about the appeal waiver. The district court ex-
plained that, by entering the plea agreement, Winston waived his
right to appeal his sentence unless one of the limited exceptions
listed in his plea agreement applied, and Winston confirmed that
he understood the terms of the waiver and the rights he was giving
up. He added that he reviewed the plea agreement with his attor-
ney before he signed it, and he understood its terms. Winston also
signed the agreement, again confirming that he understood the
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22-11795 Opinion of the Court 3
agreement and voluntarily agreed to it. On this record, the waiver
was made knowingly and voluntarily and is a valid appeal waiver.
See id.
As a result, Winston may only appeal his sentence if one of
the exceptions in the appeal waiver applies. In his appeal brief,
Winston argues that the district court abused its discretion by not
sentencing him to concurrent sentences. Notably, however, he is
not arguing that the district court imposed a sentence that ex-
ceeded the applicable advisory guideline range or a sentence that
exceeded the statutory maximum penalty. Indeed, his 21-month
sentence was within the guideline range of 15 to 21 months’ im-
prisonment and below the statutory maximum of 10 years’ impris-
onment. Thus, his claim does not fall within one of the exceptions
in the appeal waiver.
Accordingly, we GRANT the government’s motion to dis-
miss Winston’s appeal pursuant to the sentence appeal waiver.1
1 In addition, the Government’s motion to stay the briefing schedule is
DENIED AS MOOT.
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