USA v. Virgil Dennard

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12660
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VIRGIL DENNARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:21-cr-00336-RAH-CWB-1
____________________
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2 Opinion of the Court 22-12660
Before WILSON, L UCK , and LAGOA , Circuit Judges.
PER CURIAM:
Virgil Dennard appeals his 240-month imprisonment sen-
tence for possession with intent to distribute 5 or more grams of
methamphetamine. The government moves to dismiss Dennard’s
appeal based on the appeal waiver in his plea agreement.
Dennard argues that the district court erred in failing to
award him a downward variance because it failed to appropriately
weigh relevant 18 U.S.C. § 3553(a) factors. He contends that he
cooperated with the government and the information he provided
warranted a greater variance than he received. Dennard argues
that a 60-month sentence would be more appropriate.
In response, the government moves this Court to dismiss
the appeal because of Dennard’s binding appeal waiver in the plea
agreement. The government notes that Dennard waived his right
to appeal for any reason other than prosecutorial misconduct and
ineffective assistance of counsel, and the waiver provision was
clearly set apart in the plea agreement with a bolded, all-caps head-
ing, “Defendant’s Waiver of Appeal and Collateral Attack.” The
government also argues that because the agreement included a
confirmation that Dennard’s attorney advised him of the rights he
was waiving and because Dennard signed the agreement, it was
manifestly clear that Dennard understood he was waiving his right
to appeal. Additionally, the government contends that during the
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22-12660 Opinion of the Court 3
plea colloquy at the change of plea hearing, Dennard confirmed
that he had read the plea agreement and discussed it with his law-
yer before signing it. It also notes that the judge directly asked
Dennard if he understood the rights he was waiving, and Dennard
responded that he did. The government argues that the plea collo-
quy followed the terms of the plea agreement, laid out Dennard’s
right to an appeal in the ordinary course, and made clear that by
entering the agreement, Dennard was waiving his right to appeal,
making it manifestly clear that he knowingly and voluntarily
waived the right to appeal his sentence.
This Court reviews the validity of a sentence appeal waiver
de novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir.
2008). A sentence appeal waiver will be enforced if it was made
knowingly and voluntarily.
United States v. Bushert, 997 F.2d
1343, 1351 (11th Cir. 1993). To establish that the waiver was made
knowingly and voluntarily, the government must show either 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.
Id. The government cannot show that an appeal waiver
was knowing and voluntary from an examination of the agree-
ment’s text alone.
Id. at 1352. There is a strong presumption that
statements made during the Rule 11 colloquy are true.
United
States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). This Court has
enforced an appeal waiver where the waiver was mentioned dur-
ing the plea colloquy and the defendant said that she understood
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4 Opinion of the Court 22-12660
the appeal waiver.
See United States v. Weaver, 275 F.3d 1320,
1333 (11th Cir. 2001).
Here, we conclude that Dennard knowingly and voluntarily
waived his right to appeal his sentence.
Bushert, 997 F.2d at 1351.
At the change-of-plea hearing, the court confirmed that Dennard
had reviewed the plea agreement before signing it, discussed it with
his attorney, and understood it. And the court asked Dennard if he
understood that he was waiving the right to appeal except on
grounds of prosecutorial misconduct and ineffective assistance of
counsel, and Dennard responded that he understood. The appeal
waiver was also referenced in the plea colloquy, which this Court
found was sufficient to enforce an appeal waiver in
Weaver, 275
F.3d at 1333. Further, Dennard’s argument on appeal, that the dis-
trict court did not properly consider the 18 U.S.C. § 3553(a) factors,
does not fit within the exceptions of the appeal waiver.
Thus, the Government’s motion to dismiss this appeal pur-
suant to the appeal waiver in Appellant’s plea agreement is
GRANTED.
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. Bascomb, 451
F.3d 1292, 1297 (11th Cir. 2006) (holding that the defendant know-
ingly and voluntarily waived his right to appeal a sentence on the
ground that its length, which was below the statutory maximum,
was cruel and unusual under the Eighth Amendment);
United
States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005)
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22-12660 Opinion of the Court 5
(waiver of the right to appeal includes waiver of the right to appeal
difficult or debatable legal issues or even blatant error).
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