[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 9, 2006
No. 05-10788 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00292-CR-KOB-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WINSTON TYRONE ROBINSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 9, 2006)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
In July 2004, Winston Tyrone Robinson was indicted for possession of a
firearm by a convicted felon on October 5, 2001, in violation of 18 U.S.C. §
922(g)(1). Prior to trial, the Government moved the district court in limine to limit
Robinson’s presentation to the jury of evidence relating to Robinson’s state of
mind and in support of an entrapment-by-estoppel defense. At the hearing on the
motion, the Government contended that although Robinson had received pardons
for his previous felony convictions, the first pardon, in 1997, did not specifically
restore his right to carry a firearm, and the second pardon, in 2003, was irrelevant
because it came long after he committed the instant offense. After hearing what
Robinson had to say, the court granted the Government’s motion.
Robinson thereafter pled guilty to the charged offense under a plea
agreement in which he waived his right to appeal his sentence (with exceptions not
relevant here) but reserved the right to challenge the court’s decision granting the
Government’s motion in limine. The court then sentenced Robinson to a prison
term of 30 months. He now appeals both his conviction and sentence.
Robinson challenges his conviction on the ground that the court abused its
discretion when it granted the Government’s motion to exclude his presentation of
evidence that would have shown that he had no intention to violate the law but,
instead, tried to comply with the law by receiving a pistol permit and a pardon of
his prior offense. We are not persuaded.
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Section 922(g) states that it is unlawful for a person who has been convicted
of a felony in any court to possess a firearm “in or affecting [interstate]
commerce.” 18 U.S.C. § 922(g)(1). Because possession of a firearm by a
convicted felon, under § 922(g), is a strict liability offense, the defendant's state of
mind usually is irrelevant. United States v. Bell, 214 F.3d 1299, 1300 (11th Cir.
2000). Nonetheless, entrapment-by-estoppel may be interposed as a defense to a
charge of violating § 922. United States v. Funches, 135 F.3d 1405, 1407 (11th
Cir. 1998). A defendant is excused from criminal liability under such defense
where “a government official incorrectly informs a defendant that certain conduct
is legal, the defendant believes the government official and is then prosecuted for
acting in conformity with the official's advice.” United States v. Johnson, 139 F.3d
1359, 1365 (11th Cir. 1998). If this defense is asserted for the commission of a
federal crime, the defendant must have relied upon a statement by an official or
agent of the federal government. Funches, 135 F.3d at 1407.
Robinson failed to establish the elements of the defense of entrapment-by-
estoppel. Consequently, the court did not abuse its discretion in granting the
Government’s motion in limine, and his conviction is affirmed.
Robinson challenges his sentence on the ground that the court clearly erred
in denying him a three-level reduction of his base offense level for acceptance of
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responsibility, instead of the two-level reduction that he was granted. He presents
this challenge despite the appeal waiver that was part of his plea agreement. We
review an appeal-of-sentence waiver provision de novo. United States v. Weaver,
275 F.3d 1320, 1333 n.21 (11th Cir. 2001). Sentence-appeal waivers are valid if
they are entered into knowingly and voluntarily, with the defendant aware both that
he had a right to appeal his sentence and that he was giving up that right. United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To show that Robinson’s
waiver was knowing and voluntary, the Government had to show either that: (1)
the sentencing court questioned Robinson regarding the waiver during the plea
colloquy; or (2) the record indicates that he understood the significance of the
waiver. Id. at 1351.
We conclude that the waiver in this case (of the ground here asserted) is
enforceable. We therefore do not address the question of whether the court should
have granted the base-offense-level reduction he requested.
Robinson’s conviction and sentence are
AFFIRMED.
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