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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12345
Non-Argument Calendar
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D.C. Docket No. 0:17-cr-60321-BB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OWOLABI PAUL HAMMED,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 15, 2019)
Before WILLIAM PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Owolabi Hammed appeals the substantive reasonableness of his aggregate
61-month sentence for his convictions for bank fraud, in violation of 18 U.S.C.
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§ 1344, aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), and
access device fraud, in violation of 18 U.S.C. § 1029(a)(2), to which he pleaded
guilty. The government argues that this appeal should be dismissed based on the
sentence appeal waiver in Hammed’s written plea agreement.
“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. United States v.
Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997). 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. The valid waiver of the right to appeal
“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).
Hammed’s plea agreement included the following appeal waiver:
[I]n exchange for the undertakings made by the United States in this
plea agreement, the Defendant hereby waives all rights conferred by
[18 U.S.C. §] 3742 and [28 U.S.C. §] 1291 to appeal any sentence
imposed, including any restitution order, or to appeal the manner in
which the sentence was imposed, unless the sentence exceeds the
maximum permitted by statute or is the result of an upward departure
and/or an upward variance from the advisory guideline range that the
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Court establishes at sentencing. . . . However, if the United States
appeals the Defendant’s sentence pursuant to Sections 3742(b) and
1291, the Defendant shall be released from the above waiver of
appellate rights. By signing this agreement, the Defendant
acknowledges that the Defendant has discussed the appeal waiver set
forth in this agreement with the Defendant’s attorney.
Doc. 53 at 6 (emphases added).
At his sentencing hearing, the district court specifically questioned Hammed
about his understanding of the appeal waiver, and he acknowledged to the court
that he signed a plea agreement containing the waiver, that he understood the
sentence appeal waiver and its exceptions, and that he discussed the sentence
appeal waiver with his attorney. The district court correctly concluded that
Hammed agreed to the sentence appeal waiver knowingly and voluntarily. See
Buchanan, 131 F.3d at 1008 (finding an appeal waiver was made “knowingly and
voluntarily” because the district court’s “colloquy establishes that the defendant
understood the nature and extent of the appeal waiver and agreed to it”).
Furthermore, the three exceptions to Hammed’s appeal waiver—an appeal by the
government, a total sentence exceeding the maximum permitted by statute, or a
total sentence that is the result of an upward departure and/or an upward variance
from the advisory guideline range—are not present. Accordingly, we will enforce
Hammed’s appeal waiver and dismiss this appeal.
DISMISSED.
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