Case: 18-13057 Date Filed: 12/11/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13057 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cr-00378-KOB-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIONTEZ JAMEL MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(December 11, 2019)
Before WILSON, BRANCH, and FAY, Circuit Judges.
PER CURIAM: Case: 18-13057 Date Filed: 12/11/2019 Page: 2 of 8
With the benefit of a plea bargain, Diontez Moore pled guilty to conspiracy
to distribute 500 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and 21 U.S.C. § 846. In this case, Moore attempts to appeal his sentence of 292
months’ imprisonment. He argues that the district court clearly erred when it: (1)
applied a two-level enhancement after it found that he acted as the organizer,
leader, manager, or supervisor of a drug conspiracy (U.S.S.G. § 3B1.1(c)); (2)
applied a two-level enhancement after it determined that he obstructed justice
(U.S.S.G. § 3C1.1); and (3) decided that his prior conviction for first-degree
possession of marijuana for other than personal use was a predicate conviction
supporting his designation as a career offender (U.S.S.G. § 4B1.1(b)).
The government filed a motion to dismiss Moore’s appeal because his plea
agreement included an appeal waiver. For the reasons that follow, we grant that
motion to dismiss.
I.
Moore was charged in a three-count indictment, but pursuant to his plea
agreement, he pled guilty to only one count. In exchange for his plea, the
government agreed to move to dismiss the other counts after sentencing, to
recommend that Moore receive a sentence reduction for acceptance of
responsibility, and to recommend a sentence at the low-end of the guideline range.
2 Case: 18-13057 Date Filed: 12/11/2019 Page: 3 of 8
The plea agreement also included an appeal waiver stipulating, in relevant
part, that Moore waived his rights to appeal his conviction and sentence, as well as
any fines or restitution the district court might impose. But Moore retained his
right to appeal if: (1) the sentence was imposed in excess of the statutory
maximum; (2) the sentence imposed was an upward departure “from the advisory
guideline sentencing range calculated by the court at the time [his] sentence [was]
imposed”; or (3) he received ineffective assistance of counsel. Moore signed
directly under the waiver provision to attest that he fully understood the waiver and
that he knowingly and voluntarily entered into it. Moreover, Moore, his counsel,
and the government’s counsel signed the plea agreement.
At his change-of-plea hearing, while under oath, Moore confirmed that he
signed the plea agreement, that he and his counsel had adequate time to discuss the
agreement, and that he had no further questions about the plea agreement. Then
the district court asked Moore about the appeal waiver.
THE COURT: Mr. Moore, the plea agreement that you have signed contains language waiving or giving up some or all of your rights to appeal the sentence that’s yet to be imposed or to collaterally challenge your conviction.
Do you understand what I mean by those terms: Waiver, appeal, collateral challenge?
THE DEFENDANT: Yes, ma’am.
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THE COURT: Under certain conditions you can waive or give up those rights and a waiver would be enforced against you to prevent an appeal or a collateral challenge. However, if you believe for some reason that the waiver is not enforceable against you, then you can appeal the sentence and present the theory about the waiver to the appellate court.
At the time you signed this plea agreement, did you understand, Mr. Moore, that you were giving up some or all of those rights?
THE COURT: Did you discuss the waiver with your attorney?
THE COURT: Did you reach your own independent decision that giving up those rights was in your best interest under the circumstances of this case?
THE COURT: Do you have any questions about that waiver?
THE DEFENDANT: No, ma’am.
Later, in this same hearing, Moore confirmed that he understood that he
could not withdraw his plea on the basis of the court’s sentence and that his
statutory mandatory minimum penalty was ten years to life imprisonment. The
district court accepted Moore’s guilty plea, finding it was entered freely,
voluntarily, and knowingly.
4 Case: 18-13057 Date Filed: 12/11/2019 Page: 5 of 8
II.
We review the validity of a sentence appeal waiver de novo. United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). When a defendant challenges
his sentence on appeal by raising claims that the government argues are barred by
an appeal waiver, the government may file a motion to dismiss those claims.
United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (per curiam). An
appeal waiver will be enforced if it was made knowingly and voluntarily. United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To prevail, the
government cannot show that the appeal was knowing and voluntary from an
examination of the plea agreement’s text alone. Id. at 1352. Instead, the
government must demonstrate either that: (1) the district court explicitly
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. at 1351.
On this record, it is clear that Moore knowingly and voluntarily waived his
right to appeal in all circumstances but the three exceptions outlined in the appeal
waiver. Moore acknowledged the waiver in his plea agreement by signing directly
below the waiver and attesting that he was “knowingly and voluntarily entering
into this waiver.” Beyond that, the district court specifically questioned Moore
about the waiver during his change-of-plea hearing, explained the significance of
5 Case: 18-13057 Date Filed: 12/11/2019 Page: 6 of 8
the waiver, and assured that Moore understood the full significance of the waiver.
The district court inquired as to whether Moore understood what “waiver,”
“appeal,” and “collateral challenge” meant. He answered, “Yes, ma’am.” The
district court told Moore that “under certain conditions [he could] waive or give up
those rights and a waiver would be enforced against [him] to prevent an appeal or a
collateral challenge.” It then asked him if, at the time he signed the plea
agreement, he understood that he was “giving up some or all of those rights[.]”
Again, he answered, “Yes, ma’am.” Moore further affirmed that he discussed the
waiver with his attorney, that he made the decision to waive his rights voluntarily,
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Case: 18-13057 Date Filed: 12/11/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13057 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cr-00378-KOB-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIONTEZ JAMEL MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(December 11, 2019)
Before WILSON, BRANCH, and FAY, Circuit Judges.
PER CURIAM: Case: 18-13057 Date Filed: 12/11/2019 Page: 2 of 8
With the benefit of a plea bargain, Diontez Moore pled guilty to conspiracy
to distribute 500 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and 21 U.S.C. § 846. In this case, Moore attempts to appeal his sentence of 292
months’ imprisonment. He argues that the district court clearly erred when it: (1)
applied a two-level enhancement after it found that he acted as the organizer,
leader, manager, or supervisor of a drug conspiracy (U.S.S.G. § 3B1.1(c)); (2)
applied a two-level enhancement after it determined that he obstructed justice
(U.S.S.G. § 3C1.1); and (3) decided that his prior conviction for first-degree
possession of marijuana for other than personal use was a predicate conviction
supporting his designation as a career offender (U.S.S.G. § 4B1.1(b)).
The government filed a motion to dismiss Moore’s appeal because his plea
agreement included an appeal waiver. For the reasons that follow, we grant that
motion to dismiss.
I.
Moore was charged in a three-count indictment, but pursuant to his plea
agreement, he pled guilty to only one count. In exchange for his plea, the
government agreed to move to dismiss the other counts after sentencing, to
recommend that Moore receive a sentence reduction for acceptance of
responsibility, and to recommend a sentence at the low-end of the guideline range.
2 Case: 18-13057 Date Filed: 12/11/2019 Page: 3 of 8
The plea agreement also included an appeal waiver stipulating, in relevant
part, that Moore waived his rights to appeal his conviction and sentence, as well as
any fines or restitution the district court might impose. But Moore retained his
right to appeal if: (1) the sentence was imposed in excess of the statutory
maximum; (2) the sentence imposed was an upward departure “from the advisory
guideline sentencing range calculated by the court at the time [his] sentence [was]
imposed”; or (3) he received ineffective assistance of counsel. Moore signed
directly under the waiver provision to attest that he fully understood the waiver and
that he knowingly and voluntarily entered into it. Moreover, Moore, his counsel,
and the government’s counsel signed the plea agreement.
At his change-of-plea hearing, while under oath, Moore confirmed that he
signed the plea agreement, that he and his counsel had adequate time to discuss the
agreement, and that he had no further questions about the plea agreement. Then
the district court asked Moore about the appeal waiver.
THE COURT: Mr. Moore, the plea agreement that you have signed contains language waiving or giving up some or all of your rights to appeal the sentence that’s yet to be imposed or to collaterally challenge your conviction.
Do you understand what I mean by those terms: Waiver, appeal, collateral challenge?
THE DEFENDANT: Yes, ma’am.
3 Case: 18-13057 Date Filed: 12/11/2019 Page: 4 of 8
THE COURT: Under certain conditions you can waive or give up those rights and a waiver would be enforced against you to prevent an appeal or a collateral challenge. However, if you believe for some reason that the waiver is not enforceable against you, then you can appeal the sentence and present the theory about the waiver to the appellate court.
At the time you signed this plea agreement, did you understand, Mr. Moore, that you were giving up some or all of those rights?
THE COURT: Did you discuss the waiver with your attorney?
THE COURT: Did you reach your own independent decision that giving up those rights was in your best interest under the circumstances of this case?
THE COURT: Do you have any questions about that waiver?
THE DEFENDANT: No, ma’am.
Later, in this same hearing, Moore confirmed that he understood that he
could not withdraw his plea on the basis of the court’s sentence and that his
statutory mandatory minimum penalty was ten years to life imprisonment. The
district court accepted Moore’s guilty plea, finding it was entered freely,
voluntarily, and knowingly.
4 Case: 18-13057 Date Filed: 12/11/2019 Page: 5 of 8
II.
We review the validity of a sentence appeal waiver de novo. United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). When a defendant challenges
his sentence on appeal by raising claims that the government argues are barred by
an appeal waiver, the government may file a motion to dismiss those claims.
United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (per curiam). An
appeal waiver will be enforced if it was made knowingly and voluntarily. United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To prevail, the
government cannot show that the appeal was knowing and voluntary from an
examination of the plea agreement’s text alone. Id. at 1352. Instead, the
government must demonstrate either that: (1) the district court explicitly
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. at 1351.
On this record, it is clear that Moore knowingly and voluntarily waived his
right to appeal in all circumstances but the three exceptions outlined in the appeal
waiver. Moore acknowledged the waiver in his plea agreement by signing directly
below the waiver and attesting that he was “knowingly and voluntarily entering
into this waiver.” Beyond that, the district court specifically questioned Moore
about the waiver during his change-of-plea hearing, explained the significance of
5 Case: 18-13057 Date Filed: 12/11/2019 Page: 6 of 8
the waiver, and assured that Moore understood the full significance of the waiver.
The district court inquired as to whether Moore understood what “waiver,”
“appeal,” and “collateral challenge” meant. He answered, “Yes, ma’am.” The
district court told Moore that “under certain conditions [he could] waive or give up
those rights and a waiver would be enforced against [him] to prevent an appeal or a
collateral challenge.” It then asked him if, at the time he signed the plea
agreement, he understood that he was “giving up some or all of those rights[.]”
Again, he answered, “Yes, ma’am.” Moore further affirmed that he discussed the
waiver with his attorney, that he made the decision to waive his rights voluntarily,
and that he had no further questions about the appeal waiver.
Based on the plea agreement and transcript of the change-of-plea hearing,
the government has established that Moore knowingly and voluntarily waived his
right to appeal, and therefore, the appeal waiver is valid and enforceable. Because
Moore’s claims in this case are related to his guideline range and bring into
question the validity of his sentence, his claims are barred by the appeal waiver.
III.
Perhaps foreseeing the above conclusion about the validity and
enforceability of his appeal waiver, Moore acknowledges the waiver but argues
that if we were to address the merits of his case and rule in his favor, he would fall
into one of the waiver’s exceptions: the sentence imposed was an upward departure
6 Case: 18-13057 Date Filed: 12/11/2019 Page: 7 of 8
“from the advisory guideline sentencing range calculated by the court at the time
[his] sentence [was] imposed.”
But that is not how this exception works. We interpret plea agreements “in
accord with what the parties intended.” United States v. Rubbo, 396 F.3d 1330,
1334 (11th Cir. 2005). And absent some indication that the parties intended
otherwise, the language of the agreement should be given its ordinary and natural
meaning. See id. at 1334-35. Here, to reach the merits of Moore’s claims, we
would need to ignore the clear and unambiguous language of the very exception
Moore is seeking to enforce and determine if the guideline range the district court
calculated was the properly determined range. Our read of the waiver is that the
parties plainly intended that it permit the appeal of a sentence imposed in excess of
the guideline range “calculated by the court at the time sentence is imposed.” The
district court determined, at the time Moore’s sentence was imposed, that the
appropriate guideline range was between 292 to 365 months’ imprisonment.
Moore was sentenced at the low-end of that range. Therefore, Moore’s argument
is barred by the objective terms of the appeal waiver and its exceptions. To reach
the merits, in spite of the clear words of the appeal waiver, would deprive “the
government of the benefit that it has bargained for and obtained in the plea
agreement containing the sentence waiver.” See Buchanan, 131 F.3d at 1008.
7 Case: 18-13057 Date Filed: 12/11/2019 Page: 8 of 8
IV.
In sum, Moore knowingly and voluntarily waived his right to appeal his
sentence and the manner in which his sentence was imposed, except under limited
circumstances. The claims he raised in this appeal are barred by his appeal waiver,
and none of the exceptions to that waiver are implicated by his claims.
Accordingly, Moore’s appeal is
DISMISSED.