[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16937 Oct. 6, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-00167-CR-T-24-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MONIQUE PRUITT,
a.k.a. Mo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 6, 2009)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Monique Pruitt appeals from her conviction for conspiring to possess with
intent to distribute marijuana. On appeal, Pruitt argues that: (1) the magistrate
judge should not have accepted her guilty plea because no factual basis exists for
her guilty plea, and she did not knowingly and voluntarily enter the plea; and (2)
her sentencing counsel was ineffective for failing to make objections to the
application of the Sentencing Guidelines. After thorough review, we affirm.
Typically, we review for clear error a district court’s implicit factual
findings that the requirements of the Federal Rules of Criminal Procedure were
satisfied when it accepted a defendant’s guilty plea. See United States v. Lopez,
907 F.2d 1096, 1099 (11th Cir. 1990). Where, as here, a plea agreement contains a
sentence appeal waiver, we review the validity of the appeal waiver de novo.
United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001).
Rule 59 of the Federal Rules of Criminal Procedure governs matters before a
magistrate judge. Fed. R. Crim. P. 59. Subsection (b)(2) provides:
Within 10 days after being served with a copy of the recommended
disposition, or at some other time the court sets, a party may serve and
file specific written objections to the proposed findings and
recommendations. . . . Failure to object in accordance with this rule
waives a party’s right to review.
Fed. R. Crim. P. 59(b)(2). The waiver provision was adopted in 2005, and the
advisory committee explained that the provision “is intended to establish the
requirements for objecting in a district court in order to preserve appellate review
of magistrate judges’ decisions.” Fed. R. Crim. P. 59 advisory committee’s notes
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(2005). “Despite the waiver provisions, the district judge retains the authority to
review any magistrate judge’s decision or recommendation whether or not
objections are timely filed.” Id. (citing Thomas v. Arn, 474 U.S. 140, 154 (1985)).
We recently acknowledged Rule 59’s waiver provision in another context,
and held, on the basis of pre-Rule precedent, that we “lack[ed] jurisdiction to
review the magistrate judge’s order because [the defendant] never appealed the
ruling to the district court.” United States v. Brown, 441 F.3d 1330, 1352 (11th
Cir. 2006) (analyzing a magistrate’s order to quash a subpoena under Rule 59(a),
which contains a waiver provision identical to the provision in Rule 59(b)); see
also United States v. Schultz, 565 F.3d 1353, 1359-60 (11th Cir. 2009).
Here, the magistrate’s report and recommendation informed Pruitt that she
had ten days to appeal the recommendation. The magistrate’s recommendation
also noted that, in her plea agreement, Pruitt waived her right to appeal the
recommendation. Consequently, Pruitt never appealed the report and
recommendation, and as a result, we decline to review Pruitt’s guilty plea.
We also decline to consider Pruitt’s challenge to her sentence. A sentence
appeal waiver will be enforced if the waiver was knowing and voluntary. United
States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). For a sentence appeal
waiver to be knowing and voluntary, the government must show (1) that the
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district court specifically questioned the defendant about the waiver during the plea
colloquy, or (2) that the record is manifestly clear that the defendant otherwise
understood the significance of the appeal waiver. Id. at 1351.
Pruitt’s written plea agreement provided that she was giving up her right to
appeal “on any ground . . . except (a) the ground that the sentence exceeds the
defendant’s applicable guideline range . . . (b) the ground that the sentence exceeds
the statutory maximum penalty; or (c) the ground that the sentence violates the
Eighth Amendment,” or if the government appealed the sentence. Pruitt’s
challenge to her Guidelines calculation does not fall within any of these
exceptions. At the change of plea colloquy, the government read the appeal waiver
to Pruitt, the district court thoroughly questioned Pruitt about the waiver, and she
confirmed that she did understand its significance. Because Pruitt’s sentence
appeal waiver was knowing and voluntary, Pruitt has waived her right to appeal
this issue. Accordingly, we decline to consider any challenges to Pruitt’s sentence.
AFFIRMED.
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