[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 17, 2009
No. 09-11420 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-61597-CV-KMM
ALFRED THOMPSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 17, 2009)
Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Alfred Thompson appeals the district court’s denial of his 28
U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The district court
relied on Williams v. United States, 396 F.3d 1340 (11th Cir. 2005), to conclude
that the three claims in Thompson’s § 2255 motion alleging ineffective assistance
of counsel at sentencing were barred by the valid sentence-appeal waiver in
Thompson’s agreement. We granted a certificate of appealability on the following
issue:
Whether the district court erred by finding that Thompson’s sentence-
appeal waiver precluded his 28 U.S.C. § 2255 claims based on
ineffective assistance of counsel at sentencing, where the written plea
agreement and sentence-appeal waiver did not state that Thompson
was waiving his right to collaterally attack his sentence, in light of
Williams v. United States, 396 F.3d 1340 (11th Cir. 2005)?
On appeal, both Thompson and the government agree that the district court erred in
finding Williams applicable to the instant case, because the appeal waiver in
Thompson’s plea agreement made no mention of collateral attack.
With regard to a district court’s denial of a 28 U.S.C. § 2255 motion to
vacate, we “review legal conclusions de novo and findings of fact for clear error.”
Mamone v. United States, 559 F.3d 1209, 1210 (11th Cir. 2009).
A plea agreement is “a contract between the Government and a criminal
defendant.” United States v. Howle, 166 F.3d 1166, 1168 (11th Cir. 1999). As
such, it should be given the interpretation that the parties intended. United States v.
Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005). Additionally, a defendant may offer
2
as consideration waiver of the right to appeal, as long as that waiver is knowing
and voluntary. Howle, 166 F.3d at 1168. “[T]he defendant’s knowledge and
understanding of the sentence appeal waiver is one of the components that
constitutes the ‘core concern’ of the defendant’s right to be aware of the direct
consequences of his guilty plea.” United States v. Bushert, 997 F.2d 1343, 1351
(11th Cir. 1993) (internal quotation marks omitted). To demonstrate that a
sentence-appeal waiver is sufficiently knowing and voluntary to be enforceable,
the government must show that either (1) the district court specifically questioned
the defendant concerning the sentence appeal waiver during the colloquy; or (2) it
is manifestly clear from the record that the defendant otherwise understood the full
significance of the waiver. Id.
For a sentence-appeal waiver to bar claims raised in a § 2255 motion, “[a]t a
minimum, the would-be petitioner must know at the time of the guilty plea that the
right to federal habeas review exists, and he must realize he is giving up that right
as part of his plea bargain.” Allen v. Thomas, 161 F.3d 667, 670 (11th Cir. 1998).
When a valid sentence-appeal waiver containing express language waiving the
right to attack a sentence collaterally is entered into knowingly and voluntarily, it
will be enforceable and serve to prevent a movant from collaterally attacking a
3
sentence on the basis of ineffective assistance of counsel. Williams, 396 F.3d
at 1342.
As the government concedes in its brief, the district court erred in reading
Williams to apply to sentence-appeal waivers, as here, that do not specifically
contemplate collateral attacks. We therefore vacate the order dismissing
Thompson’s § 2255 motion as to the three claims of ineffective assistance of
counsel at sentencing, and remand for further proceedings consistent with this
opinion.
VACATED AND REMANDED.
4