United States v. Demetrus Donyell Porter

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 24, 2019
• Docket: 18-15338
• Status: Unpublished

Opinion

Case: 18-15338 Date Filed: 09/24/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15338 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cr-00155-MHT-WC-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DEMETRUS DONYELL PORTER,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Alabama ________________________

(September 24, 2019)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-15338 Date Filed: 09/24/2019 Page: 2 of 3

Demetrus Donyell Porter appeals his 84-month sentence imposed for his

conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Porter argues that the district court procedurally erred when sentencing

him by considering as part of Porter’s relevant conduct evidence of firearms seized

from his home during a May 8, 2018, search. The evidence in question had been the

subject of a successful suppression motion. In response, the government asserts that

Porter’s challenge to his sentence is barred by his valid appeal waiver contained in

his plea agreement. Where, as here, the government has not appealed Porter’s

sentence, the appeal waiver prohibits Porter from appealing or collaterally attacking

his sentence unless on grounds of ineffective assistance of counsel or prosecutorial

misconduct.

“We review the validity of a sentence appeal waiver de novo.” United States

v. DiFalco, 837 F.3d 1207, 1215 (11th Cir. 2016); 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. Lewis, 928 F.3d 980, 985

(11th Cir. 2019); United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).

To establish the waiver was made knowingly and voluntarily, the government must

show that either (1) the district court specifically questioned the defendant about the

wavier during the plea colloquy, or (2) the record makes clear the defendant

otherwise understood the full consequences of the waiver. Lewis, 928 F.3d at 985;

2 Case: 18-15338 Date Filed: 09/24/2019 Page: 3 of 3

See Garibo-Carmona v. United States, 216 F. Supp. 3d 1378, 1381 n.7 (11th Cir.

2016).

Here, the record demonstrates that Porter knowingly and voluntarily waived

his right to appeal. At the plea colloquy, the magistrate judge specifically questioned

Porter about the appeal waiver in his plea agreement. The magistrate judge

explained to Porter that he had the right to appeal his sentence but that, by entering

a guilty plea, he was waiving his right to appeal or collaterally attack all or part of

his sentence except on the grounds of ineffective assistance of counsel or

prosecutorial misconduct. Porter responded to the magistrate judge by stating he

understood. He also agreed that no one had threatened him or made any promises

or assurances not listed in the plea agreement. These facts are sufficient to establish

that Porter knowingly and voluntarily agreed to waive his right to appeal.

Porter also does not argue that any exception to the appeal waiver applies here.

Accordingly, we dismiss Porter’s appeal pursuant to the appeal waiver.

DISMISSED.