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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13584
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00213-WKW-TFM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM PORTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(November 7, 2014)
Before HULL, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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After pleading guilty, William Porter appeals his 144-month sentence for
distribution of more than 28 grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Porter’s 144-month sentence fell within the advisory guidelines range
of 130-162 months’ imprisonment and well below his statutory maximum of 40
years’ imprisonment. On appeal, Porter argues that the district court erred in
classifying him as a career offender under U.S.S.G. § 4B1.1 because his prior
Alabama conviction for second-degree escape was not a “crime of violence.” In
response, the government argues that Porter’s appeal is barred by the sentence-
appeal waiver in his amended plea agreement. After review, we agree and dismiss
Porter’s appeal.
I. WAIVER IN PLEA AGREEMENT
In his amended plea agreement, Porter agreed to waive “any and all rights
conferred by 18 U.S.C. § 3742 to appeal the sentence” and “the right to appeal the
conviction and sentence on any other ground and waives the right to attack the
conviction and sentence in any post-conviction proceeding,” including a 28 U.S.C.
§ 2255 proceeding. Porter’s appeal waiver provided only limited exceptions to the
waiver. Those exceptions were: (1) “the right to appeal or collaterally attack the
sentence on the ground of ineffective assistance of counsel or prosecutorial
misconduct” and (2) if the government appealed his sentence. Specifically, the
appeal-waiver stated:
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Understanding that 18 U.S.C. § 3742 provides for appeal by a
defendant of the sentence under certain circumstances, Defendant
expressly waives any and all rights conferred by 18 U.S.C. § 3742 to
appeal the sentence. Defendant further expressly waives the right to
appeal the conviction and sentence on any other ground and waives
the right to attack the conviction and sentence in any post-conviction
proceeding , including a Tile 28, United States Code, Section 2255
proceeding. This waiver does not include the right to appeal or
collaterally attack the sentence on the ground of ineffective assistance
of counsel or prosecutorial misconduct. . . . . [I]f the United States
appeals Defendant’s sentence pursuant to 18 U.S.C. § 3742(b),
Defendant is released from this waiver.
None of the circumstances under which Porter reserved his right to appeal
his sentence exists here. Porter’s appeal does not raise claims of ineffective
assistance of counsel or prosecutorial misconduct, and the government has not
appealed the sentence. Therefore, if enforceable, Porter’s appeal waiver precludes
our review of Porter’s claim of a guidelines calculation error.
An appeal waiver is enforceable if it was made knowingly and voluntarily.
United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). An appeal
waiver will be enforced if either “the district court specifically questioned the
defendant about the waiver during the plea colloquy” or “the record clearly shows
that the defendant otherwise understood the full significance of the waiver.”
United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (quotation
marks omitted).
Here, the magistrate judge who conducted Porter’s plea colloquy specifically
questioned Porter about the appeal waiver and confirmed that Porter understood its
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terms. Further, Porter does not dispute that he knowingly and voluntarily waived
his right to appeal his sentence. Thus, Porter’s appeal waiver is valid and
enforceable.
II. MISCARRIAGE OF JUSTICE
Nonetheless, Porter argues that an otherwise effective sentence-appeal
waiver should be unenforceable if it will result in a “miscarriage of justice.”
Porter contends that the district court’s alleged misapplication of the career-
offender guideline “was a miscarriage of justice.” Porter stresses that without the
career-offender increase, his offense level and resulting advisory guidelines range
would have been lower. 1
We review our precedent in this regard and explain why Porter’s argument
fails. Here is what we have said about appeal waivers.
This Court has strictly enforced appeal waivers. For example, we have
concluded that an appeal waiver “includes more than just difficult or debatable
legal issues; it includes ‘waiver of the right to appeal blatant error.’” United States
v. Johnson, 541 F.3d 1064, 1068 (11th Cir. 2008) (quoting Grinard-Henry, 399
F.3d at 1296). We have expressly enforced a sentence-appeal waiver where the
defendant claims a misapplication of the Sentencing Guidelines. See United States
1
Without the career offender increase, Porter’s total offense level would have been 21.
Porter’s criminal history category of VI and an offense level of 21 would have yielded an
advisory guidelines range of 77 to 96 months’ imprisonment.
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v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999) (involving a claim that the district
court erred in denying a downward departure under U.S.S.G. § 5K2.0). We have
also concluded that “the right to appeal a sentence based on Apprendi/Booker
grounds can be waived in a plea agreement” and that “[b]road waiver language
covers those grounds of appeal.” Grinard-Henry, 399 F.3d at 1296 (quotation
marks omitted). Indeed, a “‘[w]aiver would be nearly meaningless if it included
only those appeals that border on the frivolous.’” United States v. Johnson, 541
F.3d 1064, 1068 (11th Cir. 2008) (quoting Howle, 166 F.3d at 1169). And, if we
were free to strike a defendant’s waiver of his right to appeal every time a case
presents a legal sentencing issue, “prosecutors would no longer be willing to give
very much in exchange for such a waiver, and the ability of defendants to plea
bargain would be hampered.” Howle, 166 F.3d at 1169.
Although this Court has strictly enforced valid appeal waivers, we have
never said that an appeal waiver is always an absolute bar. See id. at 1169 n. 5
(stating, in dicta, that “[i]n extreme circumstances—for instance, if the district
court had sentenced Howle to a public flogging—due process may require that an
appeal be heard despite a previous waiver”). We need not resolve the question of
whether a miscarriage of justice exception should exist to a valid appeal waiver,
however, because, even assuming arguendo that such an exception exists, the
guidelines calculation issue Porter raises would not fall within it.
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In conclusion, because Porter knowingly and voluntarily entered into his
sentence-appeal waiver, and that sentence-appeal waiver bars his career-offender
claim, we must dismiss his appeal of his sentence. 2
AFFIRMED.
2
In his appeal, Porter makes no claims as to his conviction.
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