[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13284 ELEVENTH CIRCUIT
APRIL 28, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00132-CR-J-34-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMMIE LEE WILSON, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 28, 2010)
Before EDMONDSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Sammie Wilson, III appeals his sentence of 210 months of imprisonment for
conspiracy to distribute 500 grams or more of cocaine. 21 U.S.C. §§ 841(a)(1),
(b)(1)(B). Wilson challenges the information submitted by the government to
enhance his sentence, his classification as a career offender, and the
constitutionality and reasonableness of his sentence. The United States responds
that Wilson’s arguments are barred by the appeal waiver in his plea agreement.
We affirm in part and dismiss in part.
Wilson was indicted for conspiracy to distribute 500 grams or more of
cocaine, id. §§ 841(a)(1), (b)(1)(B), 846, and possession with the intent to
distribute cocaine, id. §§ 841(a)(1), (b)(1)(C); 18 U.S.C. § 2. Three months later,
the government moved to enhance Wilson’s sentence. 21 U.S.C. § 851(a)(1). The
government filed an information that “[o]n or about September 30, 2002, in the
United States District Court, Middle District of Florida, Jacksonville Division,
Case Number 3:02-cr-93-J-21TEM,” Wilson “was convicted of possession with
intent to distribute more than 500 grams of cocaine.” The information stated that
Wilson faced an enhanced penalty for his conspiracy charge of a “minimum
mandatory term of imprisonment of ten (10) years and up to life imprisonment, $4
million in fines, or both, and a term of supervised release of at least 8 years.”
Wilson entered an agreement with the government to plead guilty to
conspiracy to distribute cocaine in exchange for the dismissal of the distribution
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charge. The plea agreement stated that “[p]ursuant to the Information . . . filed” by
the government, Wilson faced a sentence between 10 years and life imprisonment.
The plea agreement provided that Wilson waived his right to appeal his sentence,
subject to three exceptions: the sentence exceeded the “applicable guidelines range
as determined by the Court”; the sentence exceeded the maximum statutory
penalty; or the sentence violated the Eighth Amendment.
At a change of plea hearing, a magistrate judge discussed with Wilson his
right to appeal his sentence and the consequences of his decision to waive that
right. Wilson verified that he had agreed, subject to the three exceptions, to waive
his right to appeal his sentence, and he later acknowledged a second time that his
right to appeal was “controlled by [the] appeal of sentence waiver provision.” The
magistrate judge twice discussed with Wilson the information filed by the
government and the enhanced penalty Wilson faced, and Wilson verified three
times during the plea colloquy that he understood the maximum penalty. The
magistrate judge recommended that the district court accept Wilson’s plea of
guilty, and the district court later adjudged Wilson guilty of conspiracy to
distribute cocaine.
The presentence investigation report identified Wilson as a career offender
based on his prior convictions for attempted manslaughter and possession with
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intent to distribute cocaine and listed an adjusted offense level of 37. United States
Sentencing Guideline § 4B1.1(b)(A) (Nov. 2008). After a three-point reduction for
acceptance of responsibility, id. § 3E1.1, the report provided a total offense level of
34. With a criminal history of VI, the report provided a sentencing range between
262 and 327 months of imprisonment.
Wilson objected to his classification as a career offender, but the district
court overruled the objection. The district court adopted the statements of fact and
calculations in the presentence investigation report, and Wilson did not object. The
court reduced Wilson’s offense level by two points for his substantial assistance to
the government, id. § 5K1.1, and the court sentenced Wilson to 210 months of
imprisonment.
The government argues that the appeal waiver bars Wilson from challenging
the information, but we decline to address that argument, which raises a thorny
jurisdictional issue, because the information clearly satisfies the procedural and
substantive requirements of section 851. When the government intends to request
that the district court enhance a sentence, the government must file either “before
trial, or before entry of a plea of guilty” an information “stating in writing the
previous convictions to be relied upon.” 28 U.S.C. § 851(a)(1). The purpose of
the information filed under section 851 is to “‘allow[] the defendant to contest the
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accuracy of the information’” and “‘to have ample time to determine whether to
enter a plea or go to trial and plan his trial strategy with full knowledge of the
consequences of a potential guilty verdict.’” United States v. Ramirez, 501 F.3d
1237, 1239 (11th Cir. 2007) (quoting United States v. Williams, 59 F.3d 1180,
1185 (11th Cir. 1995)). The government filed its information three months after
Wilson was indicted and more than a month before Wilson executed the plea
agreement, and the information identified the date, case number, venue, and type of
offense committed by Wilson. Wilson argues, for the first time on appeal, the
notice was insufficient because the government “failed to identify the particular
statutory subsection involved,” but that detail is not required by the text or the
purpose of the statute, and Wilson does not contend the omission confused him or
affected his decision to plead guilty. The district court did not plainly err by
treating the information as sufficient to provide Wilson notice that he faced a
possible sentence of imprisonment for life.
Wilson argues that the district court improperly sentenced him as a career
offender and his sentence is unreasonable, but these arguments are barred by the
appeal waiver. The record establishes that Wilson knowingly and intelligently
waived his right to appeal his sentence. See United States v. Benitez-Zapata, 131
F.3d 1444, 1446 (11th Cir. 1997). We dismiss the portion of Wilson’s appeal that
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challenges the calculation and reasonableness of his sentence.
Wilson asserts for the first time on appeal that his sentence violates the
Eighth Amendment, but he has abandoned that argument. Although Wilson refers
to the Eighth Amendment in his statement of the issue, he fails to state how his
sentence is constitutionally infirm. “[A]n appellant’s simply stating that an issue
exists, without further argument or discussion, constitutes abandonment of that
issue and precludes our considering the issue on appeal.” Singh v. U.S. Att’y Gen.,
561 F.3d 1275, 1278 (11th Cir. 2009).
AFFIRMED IN PART, DISMISSED IN PART.
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