[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12334 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 28, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20133-PAS-2
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,
versus
MAURICE DWIGHT MARSHALL,
a.k.a. Maurice Marshall,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 28, 2011)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Maurice Marshall appeals his convictions and 108-month total sentence for
conspiracy to possess with intent to distribute a detectable amount of Oxycodone,
in violation of 21 U.S.C. § 846, and possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that: (1) the district
court erroneously denied his motion for reconsideration of the denial of his motion
to suppress; (2) the government breached the plea agreement when it failed to
return property not included in the final order of forfeiture; and (3) the district
court erroneously denied his request for a minor role reduction. For the reasons
set forth below, we affirm Marshall’s convictions and dismiss his appeal of his
sentences.
I.
Marshall was indicted for, among other things, conspiring to possess with
intent to distribute a substance containing a detectable amount of Oxycodone, in
violation of 21 U.S.C. § 846, and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). The indictment included a forfeiture provision,
which specified that $7,137, a 9-millimeter pistol, and 10 rounds of 9-millimeter
ammunition were subject to forfeiture.
He filed a motion to suppress, which the district court ultimately denied.
Marshall then filed a motion for reconsideration of that denial, which the court
also denied.
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Marshall and the government entered into a written plea agreement. The
agreement contained an appeal waiver, under which Marshall waived his right to
appeal his sentence unless it exceeded the statutory maximum sentence or the
court imposed an upward departure, variance, or both from the guideline range it
established. Marshall would also be released from the appeal waiver if the
government appealed his sentence.
At the change of plea hearing, Marshall testified that he had been able to
communicate with his attorney, he and his attorney had thoroughly discussed the
case, his attorney had answered all of his questions to his satisfaction, he was
satisfied with his attorney’s advice and representation, and he had discussed every
page of the plea agreement with his attorney before signing it. No one had
threatened Marshall to persuade him to accept the plea agreement and plead guilty,
nor had anyone made him any promises not contained in the plea agreement. He
was aware of the elements the government would have to prove before he could be
found guilty.
Marshall further testified that he understood that, by pleading guilty, he was
giving up his right not to incriminate himself, to a trial, to be represented by an
attorney at trial, to have an attorney appointed for trial if he could not afford one,
to see and cross-examine the government’s witnesses, to testify or not testify
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without having his decision held against him by the jury, and to call and subpoena
witnesses in his defense. Marshall was aware that his maximum sentence for
violating 21 U.S.C. § 846 was 20 years’ imprisonment, 3 years’ supervised
release, and a $1 million fine. He was aware that his maximum sentence for
violating 18 U.S.C. § 922(g)(1) was 10 years’ imprisonment, 3 years’ supervised
release, and a $250,000 fine.
The court discussed the appeal waiver, and Marshall testified that he was
aware that he was waiving his right to appeal his sentence unless it exceeded the
statutory maximum sentence or the court imposed an upward departure from the
guideline range as determined at sentencing. He understood that, even if the court
made a mistake in calculating his guideline range, he would not be able to appeal
that mistake. He had discussed the appeal waiver with his attorney, was freely and
voluntarily waiving his right to appeal, and had no reservations about his decision.
The court found that Marshall had freely, voluntarily, and knowingly waived his
right to appeal his sentence.
The court also discussed the items that would be subject to forfeiture, and
the government and Marshall’s attorney agreed that $7,137, the gun, and the
ammunition were subject to criminal forfeiture. However, Marshall’s attorney
argued that $3,170 and jewelry found on Marshall’s person were not listed in the
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indictment. His attorney further stated that the government had told him that it
could not make any promises as to the return of those items, and that he
understood that he could attempt to recover those items through an administrative
procedure. The government stated that, separately from the criminal case, it would
seek to administratively forfeit the $3,170 and jewelry. The court accepted
Marshall’s guilty plea.
Prior to sentencing, upon the government’s motion, the court entered a
preliminary order of forfeiture of the gun and ammunition listed in the indictment.
At sentencing, Marshall’s attorney stated that the court could enter a final order of
forfeiture for the gun and ammunition. The government asked that the $7,137
listed in the indictment be forfeited. As to his guideline calculations, Marshall
objected that he should have received a minor role reduction. The court denied
this request and stated that his guideline range was 108 to 135 months’
imprisonment. The court imposed a 108-month sentence for each count, to run
concurrently, and forfeited Marshall’s right to the property identified in the
preliminary order of forfeiture. The court entered a final order of forfeiture of the
gun and ammunition.
II.
A defendant waives all nonjurisdictional defects when he pleads guilty
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“knowingly, voluntarily, and with the benefit of competent counsel.” United
States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984). A claim that the government
illegally obtained evidence is nonjurisdictional. United States v. Sepe, 474 F.2d
784, 788 (5th Cir.), aff’d on reh’g en banc, 486 F.2d 1044 (1973). A guilty plea is
knowing and voluntary if the defendant entered the plea without coercion and with
an understanding of the nature of the charges and the consequences of the plea.
United States v. Brown, 586 F.3d 1342, 1346 (11th Cir. 2009), cert. denied, 130
S.Ct. 2403 (2010). “There is a strong presumption that the statements made
during the [plea] colloquy are true.” United States v. Medlock, 12 F.3d 185, 187
(11th Cir. 1994). The defendant “bears a heavy burden to show” that statements
made under oath at a plea colloquy were false. United States v. Rogers, 848 F.2d
166, 168 (11th Cir. 1988).
Marshall has waived his right to appeal the denial of his motion for
reconsideration of the denial of his motion to suppress because he pleaded guilty
knowingly, voluntarily, and with competent counsel. See Yunis, 723 F.2d at 796.
At the change of plea hearing, Marshall testified that no one had threatened him to
persuade him to plead guilty, and that no one had made him any promises that
were not in the plea agreement. Thus, he pleaded guilty free from coercion. See
Brown, 586 F.3d at 1346. He was also aware of the nature of the charges, as he
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testified that he was aware of the elements the government would have to prove
before he could be found guilty. See id. Marshall was aware of the consequences
of his plea. See id. He testified that he understood that, by pleading guilty, he was
giving up his right not to incriminate himself, to go to trial with the assistance of
an attorney, to see and cross-examine the government’s witnesses, to testify or not
testify, and to call and subpoena witnesses in his defense. Further, he was aware
of his maximum sentences, terms of supervised release, and fines for the counts to
which he was pleading.
Finally, Marshall pleaded guilty with competent counsel, as evidenced by
his testimony that he had been able to communicate with his attorney, he and his
attorney had thoroughly discussed the case, his attorney had answered all of his
questions to his satisfaction, he was satisfied with his attorney’s advice and
representation, and he had discussed every page of the plea agreement with his
attorney before signing it. Marshall has not shown that any of his testimony was
not true. See Rogers, 848 F.2d at 168. Because Marshall pleaded guilty
knowingly, voluntarily, and with competent counsel, he waived review of the
court’s determination that the government’s evidence was not obtained illegally,
and we affirm without addressing the merits of his argument. See Sepe, 474 F.2d
at 788.
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III.
We generally review de novo the question of whether the government
breached a plea agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th
Cir. 2004). However, where a defendant fails to object to an alleged breach before
the district court, we review only for plain error. United States v. Romano, 314
F.3d 1279, 1281 (11th Cir. 2002). Plain error exists where (1) there is an error;
(2) that is plain; (3) that affected the defendant’s substantial rights; and (4) that
“seriously affect[ed] the fairness, integrity, or public reputation of the judicial
proceedings.” Id. The first step in determining whether the government breached
a plea agreement is to “determine the scope of the government’s promises.”
Copeland, 381 F.3d at 1105. In so doing, we apply an objective standard to
determine “whether the government’s actions [were] inconsistent with what the
defendant reasonably understood when” he pleaded guilty. Id. (quotation
omitted). Where a plea agreement is unambiguous, we will not consider extrinsic
evidence of the agreement’s meaning. Id. at 1105-06.
Because Marshall did not object that the government breached the plea
agreement before the district court, this claim is subject to plain error review. See
Romano, 314 F.3d at 1281. There is no error in this case because the government
did not breach the plea agreement. The plea agreement did not contain any
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provision in which the government agreed to make any effort to return Marshall’s
property. Moreover, even assuming arguendo that the plea agreement was
ambiguous, the government expressly stated at the change of plea hearing that it
would seek administrative forfeiture of the $3,170 and jewelry. Thus, Marshall
could not reasonably have interpreted his plea agreement to mean that the
government would return the jewelry and money to him. Accordingly, the
government did not breach the plea agreement, and we affirm.
IV.
We review the validity of a sentence appeal waiver de novo. United States
v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). A sentence appeal waiver
contained in a plea agreement is enforceable if it was made knowingly and
voluntarily. Id. at 1350-51. For an appeal waiver to be enforceable, the
government must demonstrate either that “(1) the district court specifically
questioned the defendant concerning the sentence appeal waiver during the Rule
11 colloquy, or (2) it is manifestly clear from the record that the defendant
otherwise understood the full significance of the waiver.” Id. at 1351.
Marshall knowingly and voluntarily waived his right to appeal his
sentences. The district court specifically questioned him about the sentence
appeal waiver during his plea colloquy, and he indicated that he understood the
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waiver and was freely and voluntarily waiving his right to appeal his sentences.
Therefore, Marshall’s appeal waiver was made knowingly and voluntarily, and he
may not appeal his sentences unless an exception to the appeal waiver applies.
See Bushert, 997 F.2d at 1350-51. Marshall’s sentences of 108 months for each
count did not exceed the statutory maximum sentences of 20 years for violating 21
U.S.C. § 846 or 10 years for violating 18 U.S.C. § 922(g)(1). Nor did his
108-month total sentence exceed his guideline range of 108 to 135 months as
determined by the court. Finally, Marshall is not released from the appeal waiver
because the government did not appeal his sentences first. Accordingly, Marshall
has not met an exception to his sentence appeal waiver, and we dismiss the appeal
of his sentences.
For the foregoing reasons, we affirm Marshall’s convictions and dismiss his
appeal of his sentences.
AFFIRMED IN PART AND DISMISSED IN PART.
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