USA v. David Levon Massey

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13763
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEVON MASSEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cr-00129-SPC-MRM-1
____________________
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2 Opinion of the Court 21-13763
Before JORDAN, NEWSOM, and MARCUS, Circuit Judges.
PER CURIAM:
The Government’s motion to dismiss this appeal pursuant
to the appeal waiver in Appellant’s plea agreement is GRANTED.
As the record reveals, Massey knowingly and voluntarily waived
his right to appeal his sentence.
See United States v. Bushert, 997
F.2d 1343, 1351 (11th Cir. 1993) (sentence appeal waiver will be en-
forced if it was made knowingly and voluntarily);
United States v.
Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (waiver of the
right to appeal includes waiver of the right to appeal difficult or
debatable legal issues or even blatant error). During the change-
of-plea hearing, the magistrate judge explained the appeal waiver
to Massey, including all the exceptions.1 Massey confirmed that he
had conferred with counsel, he understood that he was waiving his
right to appeal his sentence, and he was doing so freely and volun-
tarily.
See United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir.
2001) (appeal waiver will be enforced where the waiver provision
1 The appeal waiver found in Massey’s plea agreement provided that he “ex-
pressly waive[d] the right to appeal [his] sentence on any ground, including
the ground that the [c]ourt erred in determining the applicable guidelines
range.” The waiver provided certain exceptions, allowing Massey to appeal if:
(1) the sentence exceeded his “applicable guidelines range as determined by
the [c]ourt”; (2) the sentence exceeded the statutory maximum; or (3) the sen-
tence violated the Eighth Amendment. It further provided that, if the govern-
ment appealed the sentence, Massey was released from the waiver.
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21-13763 Opinion of the Court 3
was discussed during the plea colloquy and defendant agreed that
she understood the provision and entered into it freely and volun-
tarily);
Grinard-Henry, 399 F.3d at 1296 (appeal waiver will be en-
forced where magistrate judge specifically questioned defendant
about the appeal waiver during the plea colloquy, explained its sig-
nificance, and confirmed that defendant understood). Further,
Massey signed the agreement, which contained the appeal waiver,
further confirming that he had either read it, or had it read to him,
and fully understood its terms. On this record, Massey agreed to
the sentence appeal waiver knowingly and voluntarily, and as a re-
sult, it is enforceable unless an exception applies.
See Bushert, 997
F.2d at 1350–51.
The exceptions to Massey’s appeal waiver do not apply. For
starters, Massey’s 222-month sentence does not exceed his statu-
tory maximum of 40 years’ imprisonment and is within the guide-
line range as calculated by the district court. As for the arguments
he now raises -- concerning his objection to the career-offender en-
hancement and whether the district court imposed a procedurally
and substantively reasonable sentence -- they do not present the
kind of extreme circumstances we’ve contemplated that are not
waivable.
See United States v. Johnson, 541 F.3d 1064, 1068 (11th
Cir. 2008) (suggesting that a defendant may not waive his right to
appellate review of a sentence imposed in “extreme circum-
stances,” in excess of the statutory maximum, or based on an im-
permissible factor, such as race) (quotations omitted). Nor does
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4 Opinion of the Court 21-13763
Massey claim that his sentence violates the Eighth Amendment,
and the government has not appealed.
Accordingly, we grant the government’s motion to dismiss
Massey’s appeal because it is barred by the appeal waiver.
DISMISSED.
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