              Case: 18-11953     Date Filed: 01/15/2020   Page: 1 of 4


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-11953
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 8:16-cr-00309-EAK-TBM-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

HOWRONDA OVERSTREET,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (January 15, 2020)

Before ED CARNES, Chief Judge, MARTIN, and ROSENBAUM Circuit Judges.

PER CURIAM:

      Howronda Overstreet pleaded guilty to two counts of theft of government

property. As part of her plea she waived her right to appeal in all but four
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circumstances: the sentence “exceed[ed] the defendant’s applicable guidelines

range as determined by the Court,” the sentence exceeded the “statutory maximum

penalty,” the “sentence violate[d] the Eighth Amendment,” or the federal

government appealed.

      During Overstreet’s change of plea hearing, the magistrate judge placed her

under oath and questioned her to ensure that her plea was knowingly and

voluntarily given. Overstreet testified to the following. She was thirty-nine and

had completed some college. She was being treated for anxiety and depression but

there was nothing impacting her ability to think clearly that day. She had read the

plea agreement, understood it, and initialed each page (including the page with the

appeal waiver). And she understood that she had waived her right to appeal in all

but the four listed circumstances.

      At sentencing neither party objected to the findings in the Presentence

Investigation Report. Relying on the facts in the PSR, the district court calculated

her guidelines range as 57 to 71 months in prison. It sentenced her to 57 months in

prison and ordered her to pay a fine and restitution. Overstreet moved to have her

sentence reconsidered. The court denied that motion and Overstreet appeals.

      On appeal she contends that the district court erred in calculating her

guidelines range by relying on facts not supported by the record and by failing to




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adequately consider her cooperation. The government moved to dismiss her

appeal based on her plea waiver.

      We review de novo the validity of an appeal waiver. United States v.

Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). An appeal waiver is enforceable if

it is knowingly and voluntarily given by the defendant. The government can

establish that a waiver is knowingly and voluntarily given by showing that “the

district court specifically questioned the defendant about the provision during the

plea colloquy.” United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001).

      Overstreet’s appeal waiver was knowingly and voluntarily given. The court

specifically questioned her about the appeal waiver; she testified that she was

competent to make a plea and that she understood she was giving up her right to

appeal in all but the four listed circumstances.

      Overstreet attempts to get around her waiver by arguing that her appeal falls

into one of the listed exceptions: the sentence “exceed[ed] the defendant’s

applicable guidelines range as determined by the Court.” She asserts that the court

misapplied the guidelines calculation, so her sentence exceeded what would have

been her applicable guidelines range if the court had correctly calculated it. But

under the exception she invokes, Overstreet preserved her right to appeal only if

her sentence exceeded the applicable guidelines range “as determined by the

Court.” She did not preserve her right to appeal the court’s guidelines calculation.


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      Overstreet does not contend that her sentence was outside the range as

determined by the court. None of the other listed exceptions apply here. And there

is no general exception to appeal waivers that allows defendants to appeal incorrect

guidelines calculations. See United States v. Grinard-Henry, 399 F.3d 1294,

1296–97 (11th Cir. 2005) (rejecting a defendant’s claim that the court sentenced

him based on facts not established in the record because it did not fall into one of

the enumerated exceptions to his plea waiver). Overstreet has therefore waived her

right to appeal.

      DISMISSED.




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