USA v. Derek Morales-Figueroa

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14278
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEREK MORALES-FIGUEROA,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00144-WWB-LHP-1
____________________
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2 Opinion of the Court 22-14278
Before J ORDAN , BRANCH, and L AGOA, Circuit Judges.
PER CURIAM:
Derek Morales-Figueroa appeals his 235-month sentence
imposed after pleading guilty, pursuant to a written plea
agreement, to conspiracy to possess with intent to distribute five
kilograms or more of cocaine. Morales-Figueroa argues that the
district court (1) erred in applying a three-level enhancement under
the sentencing guidelines based on the determination that he had a
leadership or supervisory role in the crime; and (2) abused its
discretion in denying his request for a downward variance sentence
in light of mitigating factors. The government moves to dismiss
this appeal pursuant to the sentence-appeal waiver in Morales-
Figueroa’s plea agreement.
In response, Morales-Figueroa argues that the appeal waiver
is unenforceable because the district court failed to adequately
convey during his plea colloquy the circumstances under which he
was waiving his right to appeal. Furthermore, he states that the
court’s explanation was inadequate because he may have forgotten
the contents of the waiver. He also argues that the government
never stated in the plea agreement that it would be seeking (or that
Morales-Figueroa agreed to) a sentencing enhancement for being a
leader in the conspiracy, and therefore, he could not “blindly
waive” his right to appeal that issue. Finally, he argues that appeal
waivers do not prevent the correction of a miscarriage of justice,
which includes the incorrect application of the Sentencing
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22-14278 Opinion of the Court 3
Guidelines and the law. After review, we conclude that the
sentence-appeal waiver is valid and enforceable. Therefore, we
grant the government’s motion to dismiss.
“We review the validity of a sentence appeal waiver de
novo.” United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).
We enforce appeal waivers that are made knowingly and
voluntarily. See United States v. Bascomb, 451 F.3d 1292, 1294 (11th
Cir. 2006); United States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir.
1993). To demonstrate that a waiver was made knowingly and
voluntarily, the government must show that either (1) the district
court specifically questioned the defendant about the waiver
during the plea colloquy; or (2) the record makes clear that the
defendant otherwise understood the full significance of the waiver.
Bushert, 997 F.2d at 1351.
Paragraph B7 of Morales-Figueroa’s plea agreement
contained the following sentence-appeal waiver:
The defendant agrees that this Court has jurisdiction
and authority to impose any sentence up to the
statutory maximum and expressly waives the right to
appeal defendant’s sentence on any ground, including
the ground that the Court erred in determining the
applicable guidelines range pursuant to the United
States Sentencing Guidelines, except (a) the ground
that the sentence exceeds the defendant’s applicable
guidelines range as determined by the Court pursuant to
the United States Sentencing Guidelines; (b) the
ground that the sentence exceeds the statutory
maximum penalty; or (c) the ground that the
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4 Opinion of the Court 22-14278
sentence violates the Eighth Amendment to the
Constitution; provided, however, that if the
government exercises its right to appeal the sentence
imposed, as authorized by 18 U.S.C. § 3742(b), then
the defendant is released from his waiver and may
appeal the sentence as authorized by 18 U.S.C.
§ 3742(a).
(emphasis in original).
Morales-Figueroa initialed each page of the agreement and
signed the plea agreement, including the certification that he had
read the entirety of the agreement (or alternatively, that it had been
read to him) and that he fully understood its terms.
At the change-of-plea hearing, the district court informed
Morales-Figueroa that he faced a mandatory minimum of ten
years’ imprisonment and a maximum of life imprisonment, and
Morales-Figueroa stated that he understood. Morales-Figueroa
then confirmed that he had initialed the plea agreement at the
bottom of each page and signed it at the end, and that he had read
and reviewed the plea agreement with his counsel. He confirmed
that he did not need any more time to review the agreement, and
that his counsel had answered all of his questions regarding the
agreement. The district court then reviewed the terms of the plea
agreement with Morales-Figueroa. In particular, the district court
asked whether Morales-Figueroa understood that, as part of his
plea agreement, he agreed to “expressly waive the right to appeal
[his] sentence in accordance with the limitations set forth in
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22-14278 Opinion of the Court 5
paragraph B7 of [the] plea agreement,” and Morales-Figueroa
confirmed that he understood.
Morales-Figueroa’s argument that the sentence-appeal
waiver is unenforceable because it was not explained to him
adequately is refuted by the record. Although the district court did
not review the specific exceptions to the waiver during the plea
colloquy, that fact alone does not render the appeal waiver invalid.
See United States v. Boyd, 975 F.3d 1185, 1191–92 (11th Cir. 2020)
(holding appeal waiver valid even though district court did not
review the waiver’s exceptions during the plea colloquy). Rather,
in assessing whether an appeal waiver is knowing and voluntary,
the question is whether the record demonstrates that it was
“clearly conveyed to the defendant that he was giving up his right
to appeal under most circumstances.” Id. at 1192 (alterations
adopted) (quotations omitted). In this case, the appeal waiver
stated unequivocally that Morales-Figueroa was waiving the right
to appeal his sentence on “any ground” unless one of the following
occurred—(1) the sentence exceeded the guidelines range as
determined by the district court at sentencing; (2) the sentence
exceeded the statutory maximum; or (3) Morales-Figueroa sought
to challenge the sentence as violating the Eighth Amendment.
Morales-Figueroa initialed each page of the plea agreement,
including the page containing the appeal waiver, signed the
agreement, and confirmed during the plea colloquy that the
agreement was read to him and that he understood it. And during
the plea colloquy, the district court orally explained to Morales-
Figueroa that he was waiving his right to appeal except for under
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6 Opinion of the Court 22-14278
the narrow set of circumstances specified in paragraph B7 of the
plea agreement, and he stated he understood. Thus, the record
supports the conclusion that the waiver was clearly conveyed to
Morales-Figueroa and that he understood the waiver.
Contrary to Morales-Figueroa’s argument, there is no
exception to appeal waivers based on (1) the likelihood that he may
have forgotten the contents of his appeal waiver; (2) the fact that
he did not know that the government intended to pursue a
supervisory role enhancement; or (3) his belief that the district
court committed an error in applying the guidelines. See United
States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (“An
appeal waiver includes the waiver of the right to appeal difficult or
debatable legal issues or even blatant error.”). Likewise, this
“Circuit has never adopted a general ‘miscarriage of justice’
exception to the rule that valid appeal waivers must be enforced
according to their terms.” King v. United States, 41 F.4th 1363, 1368
n.3 (11th Cir. 2022), cert. denied, 143 S. Ct. 1771 (2023).
Consequently, the record establishes that Morales-
Figueroa’s sentence-appeal waiver was knowingly and voluntarily
made and is enforceable. Boyd, 975 F.3d at 1192; see also United
States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001) (enforcing an
appeal waiver where “the waiver provision was referenced during
[the defendant’s] Rule 11 plea colloquy and [the defendant] agreed
that she understood the provision and that she entered into it freely
and voluntarily”). Because his claims concerning the guidelines
enhancement and the downward departure do not fall within any
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22-14278 Opinion of the Court 7
of the limited exceptions to the valid sentence-appeal waiver, the
waiver forecloses his appeal. Accordingly, we GRANT the
government’s motion to dismiss.
APPEAL DISMISSED.
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