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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15868
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-00029-SCJ-CMS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD PERKINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 4, 2018)
Before ROSENBAUM, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
On April 8, 2016, Reginald Perkins pled guilty to one count of conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and (h). At
the sentencing hearing, the District Court noted that Perkins’s offense level was 29
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and his criminal history category was VI, yielding a guideline imprisonment range
of 151 to 188 months. The Court sentenced Perkins to 151 months’ imprisonment.
On appeal, Perkins argues that the district court erred in calculating his
sentencing guideline range because it improperly relied upon the government’s
proffered loss amount, which, Perkins argues, was unreliable and not supported by
evidence. Specifically, the government contends that the loss amount was
$1,000,000. It based this contention solely on Perkins’s statement that he could
have been a millionaire, “no questions asked,” if he had not spent the money he
made. Perkins made this statement to law-enforcement officers before his arrest.
He does not deny that he made this statement or that the statement is admissible.
Rather, he maintains that the statement was a “gross exaggeration” and that the
government failed to produce any other “reliable and specific” evidence to
corroborate the loss amount.
In response, the government has filed a motion to dismiss, arguing that
Perkins’s appeal is barred by the sentence-appeal waiver included in his plea
agreement. In relevant part, the waiver provides that Perkins “waives the right to
appeal his conviction and sentence and the right to collaterally attack his
conviction and sentence in any post-conviction proceeding . . . on any ground,”
unless one of three exceptions applies. The exceptions preserve Perkins’s right to
appeal if (1) his sentence constitutes an upward departure or upward variance from
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the guideline range as calculated by the district court; (2) he claims that his counsel
rendered constitutionally ineffective assistance; or (3) the government initiates a
direct appeal. The government contends that this waiver is enforceable because
Perkins entered into the agreement knowingly and voluntarily. Moreover, the
government notes that Perkins does not allege that the guilty plea or appeal waiver
were unknowing or involuntary, and he does not claim that any of the exceptions to
the waiver apply.
A sentence-appeal waiver will be enforced 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.
Here, the district court specifically questioned Perkins about the appeal
waiver, and Perkins indicated that he understood the terms of the waiver and that
he was freely and voluntarily giving up his right to appeal. After the government
read the language of the appeal waiver and accurately explained its terms,
including its exceptions, at the plea colloquy, Perkins indicated that he agreed with
the government’s description of the agreement. He further confirmed that no one
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had used any force, threatened him, or promised him anything to enter into the plea
agreement. Thus, the plea agreement and appeal waiver are enforceable.
The exceptions to Perkins=s appeal waiver do not apply because Perkins=s
151-month sentence does not constitute an upward departure or variance from his
guideline range as calculated by the district court, he has not claimed ineffective
assistance of counsel, and the government did not appeal. Moreover, the court
explained to Perkins at sentencing that he had waived his right to appeal but that he
could challenge his plea colloquy or the validity of the appeal waiver, itself.
Nevertheless, Perkins raised neither issue in his appeal.
Even if the district court erred in calculating the loss amount applicable to
Perkins’s offense, Perkins’s execution of a valid appeal waiver precludes his
appeal of such an error. See United States v. Grinard-Henry, 399 F.3d 1294, 1296
(11th Cir. 2005) (noting that “[a]n appeal waiver includes the waiver of the right to
appeal difficult or debatable legal issues or even blatant error”). Accordingly, the
government’s motion to dismiss this appeal pursuant to the appeal waiver in
Appellant’s plea agreement is GRANTED. See United States v. Bushert, 997 F.2d
1343, 1350-51 (11th Cir. 1993) (sentence appeal waiver will be enforced if it was
made knowingly and voluntarily); United States v. Grinard-Henry, 399 F.3d 1294,
1296 (11th Cir. 2005) (waiver of the right to appeal includes waiver of the right to
appeal difficult or debatable legal issues or even blatant error).
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DISMISSED.
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