Case: 19-13338 Date Filed: 08/13/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13338 Non-Argument Calendar ________________________
D.C. Docket No. 4:18-cr-00047-CDL-MSH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHMAR CHANDLER,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(August 13, 2020)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-13338 Date Filed: 08/13/2020 Page: 2 of 7
In April 2019, Johmar Chandler signed a written plea agreement in which he
agreed to plea guilty to possessing a firearm as a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 942(a)(2), and to possessing methamphetamine with intent
to distribute, in violation of 21 U.S.C.§§841(a)(1) and 841(b)(1)(C). Among other
things, the agreement provided that any “objections or challenges by [Chandler] to
the Presentence Investigative Report or the [c]ourt’s rulings thereon will not be
grounds for withdrawal of the plea of guilty.”
As relevant here, through the agreement, Chandler waived his right to appeal
the sentence imposed upon him by the district court, except in two narrow situations:
(1) if the sentence exceeded the high end of the advisory guideline range as the
district court calculated it at the time of sentencing, or (2) if the sentence exceeded
the statutory maximum. Under the plea agreement, Chandler would be released from
the waiver if the government appealed his sentence. Chandler signed the agreement,
which included text stating he had read the agreement, discussed it with his attorney,
fully understood it, and agreed to its terms.
At the plea hearing, among other things, Chandler confirmed that he discussed
the Sentencing Guidelines with his counsel, and he understood that the district court
would calculate the guideline range, that the range was not binding on the court, and
that his sentence could differ from any estimate he had received. He also
acknowledged that he had read, signed, and understood the plea agreement.
2 Case: 19-13338 Date Filed: 08/13/2020 Page: 3 of 7
Chandler confirmed that he understood that under the agreement, he waived his right
to appeal or attack his sentence absent one of the noted exceptions. He then
confirmed he had not been threatened, “frightened,” or forced into accepting the plea
agreement, nor had he been induced by any promises outside of the agreement itself.
Finding that Chandler was competent and capable of entering an informed plea, he
was aware of the charges and the consequences of his plea, the plea was knowing
and voluntary, and it was supported by a sufficient factual basis, the court accepted
the plea and adjudicated him guilty.
A Presentence Investigation Report (“PSI”) assigned an offense level of 29,
factoring into its calculations Chandler’s two prior felony convictions for crimes of
violence or controlled-substance offenses and thereby designating him a career
offender. The PSI also assigned Chandler a criminal-history category of VI based
on his career-offender status, pursuant to U.S.S.G § 4B1.1(b), and calculated a
guideline imprisonment range of 151 to 188 months. At sentencing, Chandler
objected to his designation in the PSI as a career offender, arguing that his state
conviction for aggravated assault was not a crime of violence under § 4B1.1. The
court denied the objection and sentenced Chandler to serve concurrent sentences of
120 months and 156 months, totaling 156 months’ imprisonment to be followed by
3 years of supervised release.
3 Case: 19-13338 Date Filed: 08/13/2020 Page: 4 of 7
Chandler appealed his sentence, arguing in essence that he should not have
been designated a career offender because his prior conviction of aggravated assault
under Georgia law is not a “crime of violence” under U.S.S.G § 4B1.2(a). Chandler
did not address the applicability of his sentence appeal waiver. Asserting that
Chandler freely and voluntarily waived his right to appeal his sentence and that no
exceptions applied, the government moved to dismiss the appeal.
In his response to the government’s motion, Chandler addressed the appeal
waiver, contending both that it did not bar him from appealing an erroneous
calculation of his guideline range and that he reasonably interpreted the waiver to
bar only appeals of “the correct guideline range.” He further argued that his actions
in preserving his objection to the district court’s guideline calculation reflected his
understanding of the waiver. Chandler claimed that the waiver contained ambiguous
language regarding whether it referred to the “correct guideline” or that calculated
by the district court. Because reasonable people could interpret his appeal waiver
differently, Chandler argued, and in light of the constitutional rights that he waived,
this Court should read the ambiguity in his favor. Also, Chandler argued that he did
not knowingly and voluntarily waive his right to appeal sentencing errors when the
district court sentenced him within an allegedly incorrect guideline range,
emphasizing that the court failed to clarify when explaining the appeal waiver that
it referred to its own guideline calculations.
4 Case: 19-13338 Date Filed: 08/13/2020 Page: 5 of 7
We review de novo the validity of a sentence appeal waiver. United States v.
Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We will enforce a sentence appeal
waiver 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. We have held that a waiver is enforceable if the defendant said he
understood it during the plea colloquy, confirmed that he had read the plea
agreement and knew that it was binding, and entered into the plea agreement freely
and voluntarily. United States v. Weaver, 275 F.3d 1320, 1323-24, 1333 (11th Cir.
2001).
However, we have acknowledged that “an effective waiver is not an absolute
bar to appellate review.” Johnson, 541 F.3d at 1068. “[T]here are certain
fundamental and immutable legal landmarks within which the district court must
operate regardless of the existence of sentence appeal waivers”; for example, a court
may not impose a sentence exceeding the applicable statutory maximum, base a
sentence “on a constitutionally impermissible factor such as race,” or impose a
sentence that is “not in accordance with the negotiated agreement.” Bushert, 997
F.2d at 1350 n.18.
5 Case: 19-13338 Date Filed: 08/13/2020 Page: 6 of 7
We interpret plea bargains “in accord with what the parties intended.” United
States v.
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Case: 19-13338 Date Filed: 08/13/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13338 Non-Argument Calendar ________________________
D.C. Docket No. 4:18-cr-00047-CDL-MSH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHMAR CHANDLER,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(August 13, 2020)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-13338 Date Filed: 08/13/2020 Page: 2 of 7
In April 2019, Johmar Chandler signed a written plea agreement in which he
agreed to plea guilty to possessing a firearm as a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 942(a)(2), and to possessing methamphetamine with intent
to distribute, in violation of 21 U.S.C.§§841(a)(1) and 841(b)(1)(C). Among other
things, the agreement provided that any “objections or challenges by [Chandler] to
the Presentence Investigative Report or the [c]ourt’s rulings thereon will not be
grounds for withdrawal of the plea of guilty.”
As relevant here, through the agreement, Chandler waived his right to appeal
the sentence imposed upon him by the district court, except in two narrow situations:
(1) if the sentence exceeded the high end of the advisory guideline range as the
district court calculated it at the time of sentencing, or (2) if the sentence exceeded
the statutory maximum. Under the plea agreement, Chandler would be released from
the waiver if the government appealed his sentence. Chandler signed the agreement,
which included text stating he had read the agreement, discussed it with his attorney,
fully understood it, and agreed to its terms.
At the plea hearing, among other things, Chandler confirmed that he discussed
the Sentencing Guidelines with his counsel, and he understood that the district court
would calculate the guideline range, that the range was not binding on the court, and
that his sentence could differ from any estimate he had received. He also
acknowledged that he had read, signed, and understood the plea agreement.
2 Case: 19-13338 Date Filed: 08/13/2020 Page: 3 of 7
Chandler confirmed that he understood that under the agreement, he waived his right
to appeal or attack his sentence absent one of the noted exceptions. He then
confirmed he had not been threatened, “frightened,” or forced into accepting the plea
agreement, nor had he been induced by any promises outside of the agreement itself.
Finding that Chandler was competent and capable of entering an informed plea, he
was aware of the charges and the consequences of his plea, the plea was knowing
and voluntary, and it was supported by a sufficient factual basis, the court accepted
the plea and adjudicated him guilty.
A Presentence Investigation Report (“PSI”) assigned an offense level of 29,
factoring into its calculations Chandler’s two prior felony convictions for crimes of
violence or controlled-substance offenses and thereby designating him a career
offender. The PSI also assigned Chandler a criminal-history category of VI based
on his career-offender status, pursuant to U.S.S.G § 4B1.1(b), and calculated a
guideline imprisonment range of 151 to 188 months. At sentencing, Chandler
objected to his designation in the PSI as a career offender, arguing that his state
conviction for aggravated assault was not a crime of violence under § 4B1.1. The
court denied the objection and sentenced Chandler to serve concurrent sentences of
120 months and 156 months, totaling 156 months’ imprisonment to be followed by
3 years of supervised release.
3 Case: 19-13338 Date Filed: 08/13/2020 Page: 4 of 7
Chandler appealed his sentence, arguing in essence that he should not have
been designated a career offender because his prior conviction of aggravated assault
under Georgia law is not a “crime of violence” under U.S.S.G § 4B1.2(a). Chandler
did not address the applicability of his sentence appeal waiver. Asserting that
Chandler freely and voluntarily waived his right to appeal his sentence and that no
exceptions applied, the government moved to dismiss the appeal.
In his response to the government’s motion, Chandler addressed the appeal
waiver, contending both that it did not bar him from appealing an erroneous
calculation of his guideline range and that he reasonably interpreted the waiver to
bar only appeals of “the correct guideline range.” He further argued that his actions
in preserving his objection to the district court’s guideline calculation reflected his
understanding of the waiver. Chandler claimed that the waiver contained ambiguous
language regarding whether it referred to the “correct guideline” or that calculated
by the district court. Because reasonable people could interpret his appeal waiver
differently, Chandler argued, and in light of the constitutional rights that he waived,
this Court should read the ambiguity in his favor. Also, Chandler argued that he did
not knowingly and voluntarily waive his right to appeal sentencing errors when the
district court sentenced him within an allegedly incorrect guideline range,
emphasizing that the court failed to clarify when explaining the appeal waiver that
it referred to its own guideline calculations.
4 Case: 19-13338 Date Filed: 08/13/2020 Page: 5 of 7
We review de novo the validity of a sentence appeal waiver. United States v.
Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We will enforce a sentence appeal
waiver 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. We have held that a waiver is enforceable if the defendant said he
understood it during the plea colloquy, confirmed that he had read the plea
agreement and knew that it was binding, and entered into the plea agreement freely
and voluntarily. United States v. Weaver, 275 F.3d 1320, 1323-24, 1333 (11th Cir.
2001).
However, we have acknowledged that “an effective waiver is not an absolute
bar to appellate review.” Johnson, 541 F.3d at 1068. “[T]here are certain
fundamental and immutable legal landmarks within which the district court must
operate regardless of the existence of sentence appeal waivers”; for example, a court
may not impose a sentence exceeding the applicable statutory maximum, base a
sentence “on a constitutionally impermissible factor such as race,” or impose a
sentence that is “not in accordance with the negotiated agreement.” Bushert, 997
F.2d at 1350 n.18.
5 Case: 19-13338 Date Filed: 08/13/2020 Page: 6 of 7
We interpret plea bargains “in accord with what the parties intended.” United
States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005). However, we read
ambiguous agreements “against the government.” See United States v. Rewis, 969
F.2d 985, 988 (11th Cir. 1992). We have held that a district court’s statements at
sentencing, encouraging a defendant to appeal an issue, “[have] no effect on the
terms of a previously approved plea agreement,” and a district court lacks the power
to modify such an agreement. United States v. Howle, 166 F.3d 1166, 1168-9 (11th
Cir. 1999).
Here, the text of the waiver provides no support for Chandler’s interpretation
that the agreement barred appeals of only sentences based on the “correct” guideline
range. The plea agreement is unambiguous; in fact, it states explicitly that Chandler
waives his right to appeal his sentence “except in the event that the [d]istrict [c]ourt
imposes a sentence that exceeds the advisory guideline range as that range has been
calculated by the [d]istrict [c]ourt at the time of sentencing, or in the event that the
[d]istrict [c]ourt imposes a sentence in excess of the statutory maximum.” (emphasis
added). Any statements made by the court at sentencing as to whether Chandler
could appeal do not modify the agreement. See Howle, 166 F.3d at 1168-69.
Furthermore, neither of the exceptions specified in the waiver applies here.
Chandler’s 120-month and 156-month sentences fall within both the advisory
guideline range and the statutory maxima. The government has not appealed
6 Case: 19-13338 Date Filed: 08/13/2020 Page: 7 of 7
Chandler’s sentence. Nor does this appeal implicate any “fundamental and
immutable legal landmarks” or “extreme circumstances” that would preclude the
enforcement of a valid sentence appeal waiver.
All that remains is whether Chandler knowingly and voluntarily waived his
right to appeal his sentence. The record indicates that he did: Chandler read and
signed the agreement, and after the district court explained the agreement, his
waiver, and the guidelines to him, Chandler confirmed each time that he understood.
By itself, that Chandler, later at sentencing, preserved his objection to his
designation as a career offender does not show that his waiver was anything less than
knowing and voluntary, in light of the evidence that he understood it when he pled
guilty. Because Chandler knowingly and voluntarily waived his right to appeal his
sentence, the waiver was unambiguous, and no exceptions apply, we GRANT the
government’s motion to dismiss.
APPEAL DISMISSED.