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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15759
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00508-RAL-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LAWRENCE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 21, 2018)
Before WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Lawrence appeals his 180-month sentence, which the district court
imposed after accepting a plea agreement that included an appeal waiver. Because
we conclude Lawrence knowingly and voluntarily waived his right to appeal, we
dismiss.
I.
Lawrence was charged with being a felon in possession of a firearm, 18
U.S.C. § 922(g)(1), possessing marijuana with intent to distribute, 21 U.S.C.
§ 841(a)(1), and carrying a firearm in furtherance of a drug-trafficking crime, 18
U.S.C. § 924(c)(1)(A)(i). Lawrence agreed to plead guilty to the first two of those
charges. As part of the written plea agreement, Lawrence expressly waived his
right to appeal unless: (1) the court imposed a sentence above the Guideline range;
(2) the court imposed a sentence above the statutory maximum; (3) the sentence
violated the Eighth Amendment; or (4) the government appealed the sentence
imposed. At the change-of-plea hearing, the district court explained these four
exceptions and attempted to ensure that Lawrence understood he was otherwise
unable to appeal. The court noted, and Lawrence acknowledged, that he had
signed the end of the agreement and initialed the first seventeen pages. Lawrence
further acknowledged that he had discussed every provision of the plea agreement
in detail with his attorney and that he understood them all. Nevertheless, the
district court undertook to explain at length some of the sentencing provisions and
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the waiver of appeal. Twice during the hearing, Lawrence assured the court, upon
its questioning, that he would immediately stop the proceedings if he was at any
time confused.
Lawrence also explained, however, that he suffered from schizophrenia. He
had been prescribed Risperdal, which normally he took at night and had taken the
night before the hearing. He affirmed that his mind was clear and he was thinking
appropriately. A psychologist had evaluated Lawrence and concluded he was
competent to proceed.
After Lawrence acknowledged that he was pleading guilty freely and
voluntarily, that he accepted every provision of the plea agreement, including the
waiver of appeal, and that he was satisfied with his counsel’s representation, the
court accepted his plea. There were no objections to the presentence report. The
court sentenced Lawrence to the mandatory minimum of 180 months.
The district court entered judgment on December 12, 2016. On December 6,
2017, Lawrence moved pro se under 28 U.S.C. § 2255 to vacate his sentence or
reinstate his right to appeal. He alleged, in part, ineffective assistance of counsel
for failure to appeal. On December 19, 2017, the district court granted the motion,
“but only to the extent that Plaintiff will be afforded an out-of-time appeal pursued
by appointed counsel.” The court followed the procedure we laid out in United
States v. Phillips, 225 F.3d 1198 (11th Cir. 2000), vacating the underlying criminal
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judgment, reimposing the same sentence, and advising Lawrence of his right to
appeal and how long he had to appeal. See id. at 1201. The civil habeas case was
terminated in Lawrence’s favor, and the criminal judgment was amended. This
timely direct appeal of the amended criminal judgment followed.
On appeal, Lawrence first argues that the appeal waiver in his plea
agreement was not made knowingly or voluntarily. Second, he contends that his
sentence is unconstitutional. Third, he asks that we remand his case and direct the
district court to reinstate his § 2255 motion.
II.
“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. See United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To establish that the
waiver was made knowingly and voluntarily, the “government must show that
either (1) the district court specifically questioned the defendant concerning the
sentence appeal waiver during the [plea] colloquy, or (2) it is manifestly clear from
the record that the defendant otherwise understood the full significance of the
waiver.” Id. at 1351.
The record demonstrates that Lawrence’s appeal waiver was made
knowingly and voluntarily. The district court specifically questioned Lawrence
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about the plea waiver during his plea colloquy, focusing on the precise terms of
Lawrence’s waiver. After an extended discussion, the court explained the waiver
in clear terms: “The bottom line is this, Mr. Lawrence. Unless one [of the] four
exceptions applies, you’ll have to live with whatever sentence I give you without
the benefit of a direct appeal to the Eleventh Circuit Court of Appeals. Do you
understand that?” Lawrence responded, “Yes, sir.” 1 We are satisfied that
Lawrence’s waiver was knowing and voluntary.
Lawrence also argues he received ineffective assistance of counsel. “We
will not generally consider claims of ineffective assistance of counsel raised on
direct appeal where the district court did not entertain the claim nor develop a
factual record.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010)
(quoting United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)).
The district court developed no factual record on the ineffective-assistance
issue. We decline to consider Lawrence’s ineffective-assistance argument without
the district court having first considered it. As we explain below, Lawrence faces
1
Lawrence devotes much of his initial brief’s statement of facts to insinuating he was
mentally incompetent. He contrasts his behavior at the change-of-plea hearing with his earlier
“active, and sometimes aggressive, stance during other hearings,” contending that the difference
“suggests that [he] was very subdued and may have been experiencing the effects of the
psychotropic drugs.” Setting aside the purely speculative nature of this suggestion, we note that
Lawrence does not advance the argument in the argument section of his brief. We deem issues
waived when they are raised only in the introductory sections of the initial brief and are not
developed in the arguments on the merits. See Kelliher v. Veneman, 313 F.3d 1270, 1274 n.3
(11th Cir. 2002).
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no bar to filing a new § 2255 motion, which is the preferred vehicle by which to
argue deficient performance of counsel. See id. at 1328–29.
III.
In his attempt to appeal his sentence directly, Lawrence maintains his
sentence was imposed under an unconstitutional statutory provision.
Whether we can consider Lawrence’s argument turns on the appeal waiver
in his plea agreement. “A plea agreement is, in essence, a contract between the
Government and a criminal defendant.” United States v. Howle, 166 F.3d 1166,
1168 (11th Cir. 1999). We generally cannot “write into the contract an exception
that the parties did not agree to.” Johnson, 541 F.3d at 1069. Accordingly, a
sufficiently comprehensive “appeal waiver 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). This reasoning extends
even to unpreserved claims of certain constitutional violations. See id. at 1296–97
(rejecting claim that sentence violated Fifth and Sixth Amendments when those
constitutional claims were not exceptions in the plea agreement). Nevertheless,
“an effective waiver is not an absolute bar to appellate review.” Johnson, 541 F.3d
at 1068. We have recognized that a defendant does not waive his right to appellate
review when sentenced “based on a constitutionally impermissible factor such as
race” or if there are “extreme circumstances—for instance, if the district court had
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sentenced [the defendant] to a public flogging . . . .” Id. (quoting Bushert, 997
F.2d at 1350 n.18, and Howle, 166 F.3d at 1169 n.5).
Lawrence does not argue, and we do not see, that any of the four exceptions
in his appeal waiver applies here. Nor does Lawrence allege that he was sentenced
Lawrence based on constitutionally impermissible factors or that there are any
“extreme circumstances.” Accordingly, having concluded that Lawrence’s appeal
waiver is valid, we cannot consider Lawrence’s constitutional challenge.
IV.
Acknowledging that he should first argue the ineffective-assistance issue in
the district court, Lawrence asks that we remand his case with instructions to
reinstate his § 2255 motion.
Lawrence asks for relief we cannot grant. He prevailed on his § 2255
motion to a limited extent: the district court allowed him to file a late direct
criminal appeal. Thus, this appeal comes from the criminal action against
Lawrence. We lack jurisdiction to reinstate his separate, unappealed civil action.
But all hope is not lost. A new § 2255 motion raising the issues the district
court declined to reach would not be barred as a “second or successive motion”
under 28 U.S.C. § 2255(h). See McIver v. United States, 307 F.3d 1327, 1330–32
(11th Cir. 2002) (holding that a “successful motion to file an out-of-time notice of
appeal [] does not render subsequent collateral proceedings ‘second or
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successive’”). Should Lawrence elect to pursue further collateral proceedings, he
faces no § 2255(h) hurdle.
APPEAL DISMISSED.
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United States v. Robert Lawrence
Combined Opinion