USA v. Jack Protzman

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11588
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK PROTZMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:22-cr-00100-BJD-PDB-1
____________________
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2 Opinion of the Court 23-11588
Before BRASHER , A BUDU , and M ARCUS , Circuit Judges.
PER CURIAM:
Jack Protzman appeals his sentence of 24 months’ imprison-
ment for conspiracy to distribute marijuana, which was reached by
a downward variance from his guideline range of 27 to 33 months’
imprisonment. On appeal, Protzman argues that: (1) his sentence
is procedurally unreasonable because the district court did not con-
sider the 18 U.S.C. § 3553(a) factors relevant to his case on an indi-
vidualized basis; and (2) his sentence is cruel and unusual, in viola-
tion of the Eighth Amendment, because it is disproportionate to his
offense due to his old age and medical conditions. In response, the
government argues that any challenge to the procedural or sub-
stantive reasonableness of the sentence is barred by the sentence-
appeal waiver in Protzman’s plea agreement. After thorough re-
view, we affirm.
We review the validity of a sentence-appeal waiver de novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We also
review constitutional challenges to a sentence de novo. United States
v. Flanders, 752 F.3d 1317, 1342 (11th Cir. 2014). However, if a de-
fendant fails to raise an argument before the district court, then we
review it for plain error. Id. To establish plain error, the defendant
must show (1) an error, (2) that is plain, and (3) that affected his
substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th
Cir. 2007). If the defendant satisfies these conditions, we may ex-
ercise our discretion to recognize the error only if it seriously
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23-11588 Opinion of the Court 3
affects the fairness, integrity, or public reputation of judicial pro-
ceedings. Id. An error is only plain if it is contrary to a federal
statute or on-point precedent of this Court or the U.S. Supreme
Court. United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013).
First, Protzman is barred from challenging the reasonable-
ness of his sentence because of the appeal waiver in his plea agree-
ment. For an appeal waiver to be effective, “it must be knowing
and voluntary.” United States v. Bushert, 997 F.2d 1343, 1350–51 (11th
Cir. 1993). “In order to prevail in its argument that this court
should enforce a sentence appeal waiver, the government” must
prove one of two things: “that either (1) the district court specifi-
cally questioned the defendant concerning the sentence appeal
waiver during the [Fed. R. Crim. P. 11] colloquy, or (2) it is mani-
festly clear from the record that the defendant otherwise under-
stood the full significance of the waiver.” Id. at 1351.
Here, Protzman’s sentence-appeal waiver was effective. He
expressly waived all challenges to his sentence on appeal except for
“(a) the ground that the sentence exceeds the defendant’s applica-
ble guideline range as determined by the Court pursuant to the
United States Guidelines; (b) the ground that the sentence exceeds
the statutory maximum penalty; [] (c) the ground that the sentence
violates the Eighth Amendment to the Constitution;” or (d) if the
government appealed his sentence. Further, he made this waiver
knowingly and voluntarily because the magistrate judge at his plea
hearing “specifically questioned [him] concerning the sentence ap-
peal waiver.” Id. The magistrate judge explained the nature of his
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4 Opinion of the Court 23-11588
right to appeal, all of the consequences of waiving it, and all of the
exceptions to the waiver, and when it asked him if he understood
all of this, Protzman replied, “I do, Your Honor.” On this record,
Protzman made the appeal waiver knowingly and voluntarily.
Because Protzman knowingly and voluntarily entered his
sentence-appeal waiver, he is barred from appealing his sentence
except in the case of the four exceptions described in the plea agree-
ment. The four exceptions, as we’ve already detailed, involve situ-
ations where his sentence exceeds the applicable guideline range or
the statutory maximum, his sentence violates the Eighth Amend-
ment, or the government appeals his sentence. Notably, none of
those exceptions include a challenge to the procedural or substan-
tive reasonableness of a downward-variance sentence within the
statutory limits. Thus, Protzman has waived all of the arguments
that he classifies as challenging the procedural reasonableness of
his sentence, which also includes arguments as to its substantive
reasonableness. See id.
As for Protzman’s remaining challenge to his sentence -- that
it was cruel and unusual in violation of the Eighth Amendment --
we are unpersuaded. “In non-capital cases, the Eighth Amendment
encompasses, at most, only a narrow proportionality principle.”
United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995). To determine
that a non-capital sentence is cruel and unusual in violation of the
Eighth Amendment, we “must make a threshold determination
that the sentence imposed is grossly disproportionate to the offense
committed and, if it is grossly disproportionate, [we] must then
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23-11588 Opinion of the Court 5
consider the sentences imposed on others convicted in the same
jurisdiction and the sentences imposed for commission of the same
crime in other jurisdictions.” United States v. Reynolds, 215 F.3d
1210, 1214 (11th Cir. 2000). “Generally, sentences within the statu-
tory limits are ‘neither excessive, nor cruel and unusual under the
Eighth Amendment.’” United States v. Bowers, 811 F.3d 412, 432
(11th Cir. 2016) (quoting United States v. Moriarty, 429 F.3d 1012,
1024 (11th Cir. 2005)).
Here, the record reflects that Protzman did not argue that
his sentence was cruel and unusual before the district court, so we
must review this issue only for plain error, and can find none. Flan-
ders, 752 F.3d at 1342. Indeed, Protzman does not cite to any con-
trolling precedent from this Court or the Supreme Court to sup-
port his claim that it was plain error to impose a sentence of incar-
ceration within the statutory limit for an elderly defendant with
health problems. In fact, our controlling precedent holds the op-
posite -- that is, that sentences within the statutory range set by
Congress, like Protzman’s, which was well below the 20-year stat-
utory maximum, will generally not violate the Eighth Amend-
ment. See Bowers, 811 F.3d at 432.
Because Protzman has failed to cite to on-point, controlling
precedent supporting his claim, he has failed to show that the dis-
trict court plainly violated the Eighth Amendment. See Hoffman,
710 F.3d at 1232.
AFFIRMED.
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