United States v. Terry Parker

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 9, 2024
• Docket: 24-11203
• Status: Unpublished

Opinion

USCA11 Case: 24-11203 Document: 21-1 Date Filed: 09/09/2024 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 24-11203 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TERRY DEWAYNE PARKER,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:23-cr-00350-RAH-SMD-1 ____________________ USCA11 Case: 24-11203 Document: 21-1 Date Filed: 09/09/2024 Page: 2 of 4

2 Opinion of the Court 24-11203

Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: Terry Parker appeals his prison sentence of 100 months for distributing methamphetamine. He contends that the district court plainly erred at sentencing by applying a guideline enhance- ment for maintaining a drug premises. See U.S.S.G. § 2D1.1(b)(12). The government moves to dismiss, arguing that Parker knowingly and voluntarily waived his right to appeal in his plea agreement. After careful review, we grant the motion and dismiss the appeal. We review de novo the validity and scope of an appeal-waiver provision. King v. United States, 41 F.4th 1363, 1366 (11th Cir. 2022). Sentence appeal waivers are enforceable if they are made know- ingly and voluntarily. Id. at 1367. To enforce a waiver, “[t]he gov- ernment must show that either (1) the district court specifically questioned the defendant concerning the sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear from the record that the defendant otherwise understood the full signifi- cance of the waiver.” United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). “We have consistently enforced knowing and vol- untary appeal waivers according to their terms.” United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006). Here, the government has shown that the appeal waiver is enforceable. Among the promises exchanged in the plea agree- ment, under the bolded heading, “THE DEFENDANT’S WAIVER OF APPEAL AND COLLATERAL ATTACK,” Parker “expressly USCA11 Case: 24-11203 Document: 21-1 Date Filed: 09/09/2024 Page: 3 of 4

24-11203 Opinion of the Court 3

waive[d] any and all rights conferred by 18 U.S.C. § 3742 to appeal the conviction, sentence, or order of forfeiture,” except “on the grounds of ineffective assistance of counsel or prosecutorial mis- conduct.” Parker would be released from the waiver if the govern- ment appealed. Parker initialed the bottom of each page of the plea agreement and signed the final page along with his attorney. Then, during the plea colloquy, a magistrate judge ques- tioned Parker about the terms of the plea agreement, including the appeal waiver. The magistrate judge explained that the plea agree- ment contained an “appeal waiver,” under which Parker was “giv- ing up the right to appeal.” Parker told the court that he had read and reviewed the plea agreement with his attorney, that he under- stood the waiver provision, and that he wished to plead guilty be- cause he was in fact guilty. The magistrate judge accepted the guilty plea as knowing and voluntary and supported by a factual basis. 1 Parker contends that the waiver is not enforceable because he was not “specifically warned that the waiver would prevent him from challenging the way the district court calculated his sen- tence.” But the plea agreement, which Parker confirmed he had read and understood, expressly waived—aside from two excep- tions not applicable here—“any and all rights . . . to appeal the . . . sentence,” which plainly covers guideline-calculation errors. Par- ker also confirmed his understanding he was “giving up the right

1 Parker consented to have a magistrate judge accept his plea and adjudicate

him guilty. USCA11 Case: 24-11203 Document: 21-1 Date Filed: 09/09/2024 Page: 4 of 4

4 Opinion of the Court 24-11203

to appeal,” even if the magistrate judge did not address in specific detail the kinds of errors he was waiving the right to raise. See United States v. Boyd, 975 F.3d 1185, 1192 (11th Cir. 2020) (stating that the “touchstone” for assessing whether an appeal waiver was made knowingly and voluntarily “is whether it was clearly con- vey[ed] to [the defendant] that he was giving up his right to appeal under most circumstances”). Under the circumstances, the magis- trate judge’s failure to explain the consequences of the waiver in greater detail does not defeat the validity of the waiver. Because Parker was specifically questioned about the waiver during the plea colloquy, and the record otherwise indicates that he understood the waiver’s full significance, we will enforce the waiver according to its terms. See Bascomb, 451 F.3d at 1294; Bush- ert, 997 F.2d at 1351. And as the government asserts and Parker does not dispute, those terms prohibit Parker from appealing his sentence. Accordingly, we must enforce the terms of the appeal waiver and grant the government’s motion to dismiss. DISMISSED.