United States v. Owolabi Paul Hammed

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 15, 2019
• Docket: 18-12345
• Status: Unpublished

Opinion

Case: 18-12345 Date Filed: 05/15/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12345 Non-Argument Calendar ________________________

D.C. Docket No. 0:17-cr-60321-BB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OWOLABI PAUL HAMMED,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 15, 2019)

Before WILLIAM PRYOR, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Owolabi Hammed appeals the substantive reasonableness of his aggregate

61-month sentence for his convictions for bank fraud, in violation of 18 U.S.C. Case: 18-12345 Date Filed: 05/15/2019 Page: 2 of 3

§ 1344, aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), and

access device fraud, in violation of 18 U.S.C. § 1029(a)(2), to which he pleaded

guilty. The government argues that this appeal should be dismissed based on the

sentence appeal waiver in Hammed’s written plea agreement.

“We review 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.

Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997). 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 valid waiver of the right to appeal

“includes the waiver of the right to appeal difficult or debatable legal issues or

even blatant error.” United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th

Cir. 2005).

Hammed’s plea agreement included the following appeal waiver:

[I]n exchange for the undertakings made by the United States in this plea agreement, the Defendant hereby waives all rights conferred by [18 U.S.C. §] 3742 and [28 U.S.C. §] 1291 to appeal any sentence imposed, including any restitution order, or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the result of an upward departure and/or an upward variance from the advisory guideline range that the

2 Case: 18-12345 Date Filed: 05/15/2019 Page: 3 of 3

Court establishes at sentencing. . . . However, if the United States appeals the Defendant’s sentence pursuant to Sections 3742(b) and 1291, the Defendant shall be released from the above waiver of appellate rights. By signing this agreement, the Defendant acknowledges that the Defendant has discussed the appeal waiver set forth in this agreement with the Defendant’s attorney.

Doc. 53 at 6 (emphases added).

At his sentencing hearing, the district court specifically questioned Hammed

about his understanding of the appeal waiver, and he acknowledged to the court

that he signed a plea agreement containing the waiver, that he understood the

sentence appeal waiver and its exceptions, and that he discussed the sentence

appeal waiver with his attorney. The district court correctly concluded that

Hammed agreed to the sentence appeal waiver knowingly and voluntarily. See

Buchanan, 131 F.3d at 1008 (finding an appeal waiver was made “knowingly and

voluntarily” because the district court’s “colloquy establishes that the defendant

understood the nature and extent of the appeal waiver and agreed to it”).

Furthermore, the three exceptions to Hammed’s appeal waiver—an appeal by the

government, a total sentence exceeding the maximum permitted by statute, or a

total sentence that is the result of an upward departure and/or an upward variance

from the advisory guideline range—are not present. Accordingly, we will enforce

Hammed’s appeal waiver and dismiss this appeal.

DISMISSED.