USA v. Arsenio Dennis

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11873
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARSENIO DENNIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00277-TPB-AAS-1
____________________
USCA11 Case: 21-11873 Date Filed: 12/28/2021 Page: 1 of 4

-- 1 of 4 --

2 Opinion of the Court 21-11873
Before R OSENBAUM , GRANT, and B RASHER , Circuit Judges.
PER CURIAM:
Arsenio Dennis appeals his total sentence of 264 months af-
ter pleading guilty to Hobbs Act robbery and using and carrying a
firearm in furtherance of a robbery, raising challenges to the calcu-
lation of his guideline sentencing range. He contends that the dis-
trict court erred by scoring dismissed conduct as a pseudo-count of
conviction rather than solely as relevant conduct, and by finding
that he “otherwise used” a firearm for purposes of a six-level sen-
tencing enhancement.
The government moves to dismiss the appeal based on a
sentence-appeal waiver in Dennis’s plea agreement. In exchange
for certain promises by the government, Dennis agreed in the plea
agreement that he “expressly waives the right to appeal [his] sen-
tence on any ground, including the ground that the Court erred in
determining the applicable guideline[] range pursuant to the
United States Sentencing Guidelines,” unless certain exceptions ap-
plied. The waiver did not apply if the sentence exceeded the guide-
line range calculated by the court or the statutory maximum, if the
sentence violated the Eighth Amendment, or if the government ap-
pealed. Dennis has not responded to the government’s motion to
dismiss.
We will enforce an appeal waiver that was made knowingly
and voluntarily.
United States v. Bascomb, 451 F.3d 1292, 1294
USCA11 Case: 21-11873 Date Filed: 12/28/2021 Page: 2 of 4

-- 2 of 4 --

21-11873 Opinion of the Court 3
(11th Cir. 2006);
United States v. Bushert, 997 F.2d 1343, 1350–51
(11th Cir. 1993). To prove that a waiver was made knowingly and
voluntarily, the government must show that (1) the district court
specifically questioned the defendant about the waiver during the
plea colloquy; or (2) the record makes clear that the defendant oth-
erwise understood the full significance of the waiver.
Bushert, 997
F.2d at 1351.
Here, Dennis knowingly and voluntarily waived the right to
appeal his sentence. During the plea colloquy, the magistrate judge
reviewed the terms of the plea agreement, including the appeal
waiver. The magistrate judge covered each of the waiver’s excep-
tions in detail, and Dennis confirmed that he understood he could
appeal only on the grounds that the sentence violated the Eighth
Amendment or exceeded the court’s guideline range or the statu-
tory maximum, or if the government appealed. The record also
shows that Dennis and his attorney signed the plea agreement, cer-
tifying that they had read the entire agreement and fully under-
stood its terms, and Dennis initialed beneath each page.
Because the record shows that the appeal waiver was made
knowingly and voluntarily, we will enforce the waiver and dismiss
the appeal.
See Bascomb, 451 F.3d at 1294;
Bushert, 997 F.2d at
1351. Dennis’s arguments on appeal fall within the scope of the
waiver. He challenges the district court’s calculation of the guide-
line range, but he expressly waived the right to appeal on “the
ground that the Court erred in determining the applicable guide-
line[] range pursuant to the United States Sentencing Guidelines.”
USCA11 Case: 21-11873 Date Filed: 12/28/2021 Page: 3 of 4

-- 3 of 4 --

4 Opinion of the Court 21-11873
And no exception to the waiver applies because the sentence was
within the guideline range calculated by the court and below the
statutory maximum, and the government has not appealed.
Accordingly, we GRANT the government’s motion to dis-
miss and DISMISS the appeal.
USCA11 Case: 21-11873 Date Filed: 12/28/2021 Page: 4 of 4

-- 4 of 4 --