USA v. Demetrius L. Richardson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12000
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS L. RICHARDSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00163-JB-MU-1
____________________
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2 Opinion of the Court 22-12000
Before WILSON, J ILL PRYOR and L UCK , Circuit Judges.
PER CURIAM:
Demetrius L. Richardson appeals the district court’s appor-
tionment of restitution following his conviction for wire fraud.
Richardson argues that the district court erred by imposing restitu-
tion jointly and severally with his codefendant, rather than appor-
tioning the restitution according to the benefit each defendant re-
alized from the fraud. Notably, however, Richardson signed a plea
agreement that contained a sentence-appeal waiver provision in
which he waived his right to appeal his sentence, with three specific
exceptions: (1) a sentence in excess of the statutory maximum, (2) a
sentence that represented an upward variance or an upward depar-
ture from the advisory guideline range, or (3) a claim of ineffective
assistance of counsel. We conclude that the appeal waiver in Rich-
ardson’s plea agreement bars this appeal.
We review the validity of a sentence-appeal waiver
de
novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir.
2008). An appeal waiver will be enforced if it was made knowingly
and voluntarily.
United States v. Bushert, 997 F.2d 1343, 1350–51
(11th Cir. 1993). To establish that the waiver was made knowingly
and voluntarily, the government must show either that: (1) the dis-
trict court specifically questioned the defendant about the waiver
during the plea colloquy, or (2) the record makes clear that the de-
fendant otherwise understood the full significance of the
waiver.
Id. at 1351;
see also Fed. R. Crim. P. 11(b)(1)(N) (requiring
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22-12000 Opinion of the Court 3
that the district court inform the defendant of the terms of an ap-
peal waiver). A waiver of the right to appeal a sentence necessarily
includes a waiver of the right to appeal the restitution imposed.
See
Johnson, 541 F.3d at 1067–69 (holding that a defendant had waived
his right to argue on appeal that the district court’s restitution order
was untimely because the defendant had knowingly and voluntar-
ily waived his right to appeal his sentence).
The district court specifically questioned Richardson about
the appeal waiver contained in his plea agreement, including the
three exceptions, and Richardson acknowledged that he under-
stood. Indeed, Richardson does not now argue that his waiver was
unknowing or involuntary. Thus, Richardson’s appeal waiver is en-
forceable. And, under
Johnson, the waiver encompasses the district
court’s restitution award.
See id.
Despite acknowledging that restitution is part of his sen-
tence,
see id., Richardson maintains that an exception to his appeal
waiver applies. He points out that he is appealing the apportion-
ment of restitution under the Mandatory Victim Restitution Act
(“MVRA”), not the imposition of restitution itself. He argues that
because the MVRA establishes “the guidelines to follow in as-
sessing restitution,” the district court’s decision to hold him ac-
countable for the entirety of the restitution award (despite, he ar-
gues, the MVRA’s guidelines) was an “upward departure” from
those “guidelines.” Reply Br. at 4. We disagree that Richardson’s
challenge falls within the exception for upward departures from the
advisory guideline range. “Advisory guideline range” as used in the
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4 Opinion of the Court 22-12000
appeal waiver is a term of art that refers to the Sentencing Guide-
lines, not to any advisory or guiding materials a district court may
consider in arriving at an appropriate sentence.
In sum, Richardson’s appeal waiver is enforceable, and the
challenge he seeks to raise falls within the scope of the waiver. We
therefore dismiss his appeal.
APPEAL DISMISSED.
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