[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 18, 2007
No. 06-14422 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00130-CR-001-WDO-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAVARESE GRAY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 18, 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Tavarese Gray appeals the sentence imposed after he was convicted, based
upon a guilty plea, of distributing crack cocaine, in violation of 21 U.S.C. § 841.
Gray raises only one point on appeal – that the district court erred by failing to
apply a downward adjustment for acceptance of responsibility. The government
argues that we should dismiss this appeal because, in his written plea agreement,
Gray waived his right to appeal his sentence unless he was sentenced above the
guideline range. Gray does not address this issue.
We review the waiver of the right to appeal de novo. United States v.
Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997). Appeal waivers are valid if
they are made knowingly and voluntarily. United States v. Bushert, 997 F.2d
1343, 1350 (11th Cir. 1993). For an appeal waiver to be enforced, the government
must show that either: (1) the district court specifically questioned the defendant
concerning the appeal waiver during the plea hearing, or (2) it is manifestly clear
from the record that the defendant otherwise understood the full significance of the
waiver. Id. at 1351. In this case, the district court, in accepting Gray’s guilty plea,
asked him only briefly about the waiver, but did so in the Fed.R.Crim.P. 11 hearing
and Gray also waived his right to appeal in his written plea agreement. We are
satisfied from the totality of this record that Gray’s waiver was knowing and
voluntary.
Moreover, we note that even if we were to disregard the waiver, the district
court’s determination that Grey was not entitled to a downward adjustment must be
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affirmed on the merits. A district court’s assessment of a defendant’s acceptance of
responsibility under U.S.S.G. § 3E1.1 is entitled to great deference, and we review
it only for clear error. United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir.
2005). Although entry of a plea of guilty will constitute significant evidence of
acceptance of responsibility, this evidence may be outweighed by conduct . . . that
is inconsistent with acceptance.” U.S.S.G. § 3E1.1, comment. (n. 3). For example,
we have held that continued drug use following indictment supported the denial of
acceptance of responsibility. United States v. Matthews, 168 F.3d 1234, 1250
(11th Cir. 1999). Here, Grey’s post-indictment conduct, including the use of
cocaine-laced marijuana, adequately supports the district court’s denial of a
downward adjustment for acceptance of responsibility.
AFFIRMED.
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