USA v. Adrian Howard

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10764
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADRIAN HOWARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:21-cr-00053-MTT-CHW-1
____________________
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2 Opinion of the Court 23-10764
Before R OSENBAUM , BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
Adrian Howard appeals his 145-month prison sentence for
possession with intent to distribute heroin, see 21 U.S.C. § 841(a)(1)
& (b)(1)(C), arguing that the district court erred in applying a sen-
tencing enhancement under U.S.S.G. § 2D2.1(b)(12) for maintain-
ing a drug premises. The government has filed a motion to dismiss
Howard’s appeal based on the sentence appeal waiver in his plea
agreement. We now grant that motion because Howard’s appeal
waiver is enforceable and bars his challenge.
We review de novo the validity of a sentence appeal waiver.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sen-
tence appeal waiver will be enforced if it was made knowingly and
voluntarily. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir.
1993). The touchstone for assessing whether an appeal waiver was
made knowingly and voluntarily is whether the court clearly con-
veyed to the defendant that he was giving up his right to appeal his
sentence under most circumstances. United States v. Boyd, 975 F.3d
1185, 1192 (11th Cir. 2020). When an appeal waiver is enforceable,
it applies “not only to frivolous claims, but also to difficult and de-
batable legal issues.” King v. United States, 41 F.4th 1363, 1367 (11th
Cir. 2022) (quotation marks omitted).
Here, the government has shown that the appeal waiver is
enforceable. In Howard’s plea agreement, a section titled and un-
derlined, “Waiver of Appeal Rights and Right of Collateral Attack,”
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23-10764 Opinion of the Court 3
states that Howard “waive[d] any right to appeal the imposition of
sentence upon [him], . . . except in the event that the District Court
imposes a sentence that exceeds the advisory guideline range as
that range has been calculated by the District Court at the time of
sentencing, or in the event that the District Court imposes a sen-
tence in excess of the statutory maximum.” Howard could also
appeal if the government appealed. Howard and his attorney
signed the plea agreement under a certification stating that How-
ard had read or been read the agreement and fully understood its
terms.
Then, during the plea colloquy, the district court covered
the plea agreement in detail and specifically questioned Howard
about the appeal waiver. Howard confirmed his understanding of
the appeal waiver and its limited exceptions. The district court
found that Howard’s guilty plea was knowing and voluntary and
supported by a factual basis. Because the district court specifically
questioned Howard about the waiver, and the record otherwise
shows that Howard understood the waiver’s significance, the gov-
ernment has shown that the appeal waiver was made knowingly
and voluntarily and so is enforceable. See Boyd, 975 F.3d at 1192;
Bushert, 997 F.2d at 1351.
No exception to the appeal waiver applies. Howard chal-
lenges the calculation of his guideline range, specifically the district
court’s application of an enhancement for maintaining a drug
premises that the government had stipulated did not apply. But
because the sentence imposed did not exceed either the statutory
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4 Opinion of the Court 23-10764
maximum or “the advisory guideline range as that range has been
calculated by the District Court at the time of sentencing,” How-
ard’s challenge is barred by the appeal waiver even if it presents
difficult and debatable issues. See King, 41 F.4th at 1367.
For these reasons, we GRANT the government’s motion to
dismiss the appeal. As a result, Howard’s motion for substitute
counsel is DENIED as moot.
APPEAL DISMISSED.
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