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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14015
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D.C. Docket No. 2:16-cr-00560-RBD-WC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TAURIO KORTAVIOUS HARRIS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(January 9, 2020)
Before ED CARNES, Chief Judge, ROSENBAUM, Circuit Judge, and VINSON,*
District Judge.
*
Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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PER CURIAM:
Taurio Harris entered a written plea agreement with the government and
later pleaded guilty to being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). As part of his plea agreement, he waived his right to appeal or
collaterally attack his sentence, except for claims of ineffective assistance of
counsel or prosecutorial misconduct. He specifically waived the right to challenge
his sentence based on the district court’s determination of his guidelines range.
The district court calculated Harris’ guidelines range as 92 to 115 months
imprisonment, and he faced a statutory maximum of ten years. He was sentenced
to 92 months, the bottom end of the range. He appeals his sentence, contending
that his guidelines range was improperly determined based on a cross-reference to
voluntary manslaughter.
I.
The government filed a motion to dismiss Harris’ appeal based on the appeal
waiver. Harris did not file a response. A motions panel of this Court issued an
order denying the government’s motion and stating that the waiver was invalid and
unenforceable.
In its brief on the merits, the government has renewed its contention that the
appeal waiver bars Harris’ appeal. It urges us, as the panel considering the appeal
on the merits, to vacate the motion panel’s earlier order. We have the authority to
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do that. See 11th Cir. R. 27-1(g) (“A ruling on a motion or other interlocutory
matter, whether entered by a single judge or a panel, is not binding upon the panel
to which the appeal is assigned on the merits, and the merits panel may alter,
amend, or vacate it.”). It is late, but not too late, to determine whether the appeal
waiver is enforceable. See id.; see also United States v. Buchanan, 131 F.3d 1005,
1008 (11th Cir. 1997) (“Motions to dismiss based upon sentence appeal waivers
should be decided at the earliest stage in the process at which it is feasible to do so.
. . .”).
We review de novo the validity of an appeal waiver. United States v.
Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).
II.
“A sentence appeal waiver must be made knowingly and voluntarily.” Id.
(citing United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001)). “The
waiver is valid if the government shows either that: (1) the district court
specifically questioned the defendant about the waiver; or (2) the record makes
clear that the defendant otherwise understood the full significance of the waiver.”
Id. (citing United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)).
We have explained:
[K]nowingly and voluntarily entered plea agreements containing
appeal waivers are like contracts in which the government and the
defendant have bargained for a deal. Defendants and the government
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alike benefit from the ability to bargain and undermining the
enforceability of such bargains harms all parties that use them. For that
reason, among others, as long as an appeal waiver is voluntarily and
knowingly entered into as part of a valid plea agreement, and that
agreement is accepted by the court, the waiver is enforceable.
United States v. Bascomb, 451 F.3d 1292, 1296–97 (11th Cir. 2006) (citations
omitted). Only in extreme cases, such as if a defendant were sentenced to a public
flogging, should an appeal be heard despite a knowing and voluntary waiver. See
id. at 1295.
We have emphasized that “a waiver of appellate rights applies not only to
frivolous claims, but also to difficult and debatable legal issues. Indeed, it even
includes a waiver of the right to appeal blatant error.” United States v. DiFalco,
837 F.3d 1207, 1215 (11th Cir. 2016) (citations and quotation marks omitted). That
is so because “when the parties have struck a deal that includes the appeal waiver,
a decision altering the terms of that waiver would cut the heart out of the bargain.”
United States v. Lewis, 928 F.3d 980, 986 (11th Cir. 2019) (alterations and
quotation marks omitted). “We will not perform a waiverectomy.” Id.
If an enforceable appeal waiver applies, Harris is barred from challenging
his sentence, and we are “required to dismiss his appeal.” DiFalco, 837 F.3d at
1215 (emphasis added).
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III.
With the assistance of counsel, Harris pleaded guilty to a felon in possession
of a firearm charge, and he entered a written plea agreement. Harris’ plea
agreement does contain an appeal waiver, set out with an underlined heading in
bold and all capital letters titled: “THE DEFENDANT’S WAIVER OF
APPEAL AND COLLATERAL ATTACK.” The waiver states:
Understanding that 18 U.S.C. § 3742 provides for appeal by a defendant
of the sentence under certain circumstances, the defendant expressly
waives any and all rights conferred by 18 U.S.C. § 3742 to appeal the
sentence. The defendant specifically waives the right to appeal the
sentence on the grounds that (a) the sentencing guidelines are in any
respect unconstitutional, (b) any fact found by the Court for sentencing
was not alleged in the Indictment, admitted by the defendant, found by
a jury, or found beyond a reasonable doubt, (c) the sentence imposed
was unreasonable, and (d) that the Court erred in determining the
applicable Guidelines range pursuant to the United States Sentencing
Guidelines. The 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 proceedings pursuant to 28 U.S.C. § 2255. This
waiver does not include the right to appeal on the grounds of ineffective
assistance of counsel or prosecutorial misconduct, or to collaterally
attack the sentence imposed on those grounds. But, other than those
grounds, the defendant expressly waives the right to appeal or
collaterally attack his conviction or sentence on any other ground.
The next provision says: “The defendant understands and acknowledges that,
although the parties are permitted to make recommendations and present
arguments to the Court, the sentence and the United States Sentencing Guidelines,
if any, applicable to the defendant’s case will be determined solely by the Court,
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with the assistance of the United States Probation Office.” Harris agreed to all of
those provisions, and he and his counsel signed the plea agreement.
At the plea colloquy, the judge placed Harris under oath and questioned him
to ensure that his plea was knowing and voluntary. Harris confirmed that it was
his signature on the plea agreement. He testified that he had reviewed the
agreement with his attorney and that he understood its terms. He testified that no
one had threatened him or tried to force him to sign it. He agreed that he
understood that the sentencing judge was free to “follow the agreement in whole or
in part or not at all,” and in any event he would still be bound by his guilty plea.
The judge told Harris that he faced a maximum sentence of ten years in
prison. He told Harris that his sentence would be determined using a number of
factors, including the calculation of his advisory guidelines range. Harris
acknowledged that his counsel had discussed with him how the guidelines might
apply. The judge emphasized that no one, including the judge who would later
impose his sentence, could tell Harris “precisely what the guidelines are going to
require in your case and that the sentence may very well be different than any
estimate that your lawyer may have given you.” Harris said he understood that.
The judge went on to explain that even if Harris’ lawyer could accurately predict
what the guidelines would require, the sentencing judge had to consider other
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factors and could impose a sentence “more severe or less severe” than the
guidelines called for. Harris said he understood that.
The judge specifically addressed the appeal waiver and the fact that under
the terms of the written plea agreement Harris was giving up his appeal rights.
There was this exchange on the subject:
THE COURT: Mr. Harris, ordinarily a person who enters a plea of
guilty or one who goes to trial and is found guilty — ordinarily, under
those circumstances, that person may still appeal their conviction or
their sentence or both, or they may collaterally attack their conviction
or their sentence or both. Do you understand that under the terms of
your plea agreement, that if you get the benefit of the deal that you’ve
struck with the government, that you’ve given up your rights to do those
things.
THE DEFENDANT: Yes, sir.
THE COURT: And do you know and understand that if you didn’t have
that provision in your plea agreement, that if you chose to appeal, that
this Court could provide you with a free attorney and a free transcript
so that you could appeal if you chose to do so?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand you’re giving that up if you get the
benefit of the bargain that you’ve struck with the government?
THE DEFENDANT: Yes, sir.
The judge did not discuss the waiver’s two exceptions for claims of ineffective
assistance of counsel or prosecutorial misconduct. Harris’ guilty plea was
accepted, and a judgment of conviction was entered.
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IV.
The only conceivable grounds for finding that Harris’ appeal waiver was
involuntary is that the judge did not recite during the plea colloquy the two
exceptions that the written plea agreement contained. Arguably, by not mentioning
the waiver’s two exceptions, the judge overstated the breadth of the waiver and
implied that Harris was waiving more rights than he actually was under the
agreement.1
The fact that the waiver in the written plea agreement is more favorable to
Harris than the one the judge described does not, in this case, mean that his appeal
waiver was involuntary or invalid, since Harris’ agreement to the judge’s
description of the appeal waiver necessarily indicated his agreement to his actual,
narrower appeal waiver. The court asked him if he understood that he was waiving
his right to appeal his sentence, and he swore that he did. That is the essence of a
voluntary waiver. See Bushert, 997 F.2d at 1350 (explaining that “one of the keys
to enforcing a sentence appeal waiver is that the defendant knew he had a right to
1
There is nothing to indicate that the judge in this case intentionally characterized the
appeal waiver as broader than it actually was, and we do not imply that he did. Still, judges
should take care to describe an appeal waiver accurately. Including in the description any
exceptions to the waiver will ensure that the defendant understands what rights of appeal he has
left. In this opinion, we address only the facts before us and do not preclude the possibility that
an overbroad description of a waiver in some different circumstances might show that the
defendant did not understand the actual terms of the plea agreement and waiver.
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appeal his sentence and that he was giving up that right”) (quotation marks
omitted).
A defendant who agrees to waive his appeal rights with no exceptions
whatever is willing to waive more than a defendant who agrees to waive his appeal
rights except for two claims or issues if they apply. Everything is more than
everything with two exceptions. There is no imaginable reason why Harris would
agree to waive all his appeal rights but not agree to waive some but not all. If the
misstatement had run in the opposite direction –– telling the defendant the waiver
was narrower than it was, that he was giving up less than he actually was –– there
might well be a problem with voluntariness. Cf. id. at 1352–53 (concluding that it
was confusing when the district court told the defendant at the plea colloquy that
he was “waiving his right to appeal the charges against him” and then told him that
he might have the right to appeal his sentence “under some circumstances” when
he actually “was giving up his right to appeal under most circumstances”).
Harris has neither invoked the appeal waiver exceptions in his plea
agreement nor made any argument that could fit within them. And the argument
he has made challenging his sentence fits squarely within the heart of the waiver,
both as written and as the judge explained it to him.
The waiver states: “The defendant specifically waives the right to appeal the
sentence on the grounds that . . . the Court erred in determining the applicable
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Guidelines range pursuant to the United States Sentencing Guidelines.” Harris’
sole argument on appeal is that the district court erred in determining his guidelines
range by applying the cross-reference for voluntary manslaughter. 2 The plain
terms of the appeal waiver foreclose an appeal on that basis.
“The classic definition of waiver is ‘an intentional relinquishment or
abandonment of a known right or privilege.’” Lewis, 928 F.3d at 986 (quoting
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)). By the
express terms of the appeal waiver, Harris has intentionally relinquished and
abandoned his right to appeal his sentence based on the district court’s
determination of the applicable guidelines range.
V.
For those reasons, this Court’s earlier order is VACATED, and the appeal is
DISMISSED.3
2
We do not fault Harris’ counsel for making that argument. She was directed to do so
after her motion to withdraw was denied. She has provided able representation to Harris
throughout this appeal, and her public service as a court-appointed attorney is in keeping with the
best traditions of the Bar.
3
This appeal was originally scheduled for oral argument but was removed from the oral
argument calendar by unanimous consent of the panel under 11th Circuit Rule 34–3(f).
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