           Case: 13-13523    Date Filed: 11/21/2017   Page: 1 of 6


                                                          [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13523
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 7:12-cr-00036-HL-TQL-1


UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                   versus

BACARI MCCARTHREN,

                                                         Defendant - Appellant.

                      ________________________

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

                            (November 21, 2017)

                  ON REMAND FROM THE
            SUPREME COURT OF THE UNITED STATES

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Bacari McCarthren pled guilty in 2013 to possession with intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a). The district court sentenced him to the

statutory maximum penalty for that offense, 20 years of imprisonment, after

applying the career-offender enhancement under the United States Sentencing

Guidelines, see U.S.S.G. § 4B1.1.         We affirmed McCarthren’s conviction and

sentence on direct appeal after his counsel filed a no-merit brief pursuant to Anders

v. California, 386 U.S. 738 (1967). See United States v. McCarthren, 575 Fed.

App’x 873 (11th Cir. 2014).          The Supreme Court vacated that decision and

remanded the case to us for further consideration in light of Johnson v. United

States, 576 U.S. ___, 135 S. Ct. 2551 (2015). 1

       On appeal, McCarthren maintains that the career-offender enhancement was

incorrectly applied because, in his view, his prior conviction for aggravated battery

under Florida Statute § 784.045(1)(a) no longer qualifies as a “crime of violence.”

In response, the government has filed a motion to dismiss arguing that

McCarthren’s appeal is barred by the sentence-appeal waiver in his plea

agreement.    After careful review, we agree with the government and dismiss

McCarthren’s appeal.


       1
         McCarthren concedes that, as a result of the Supreme Court’s subsequent decision in
Beckles v. United States, 137 S. Ct. 886 (2017) (holding that Johnson did not apply to the
advisory guidelines), he no longer has a challenge based on Johnson. Instead, he attempts to
bring a different challenge based on Mathis v. United States, 136 S. Ct. 2243 (2016). Even
assuming we can construe the remand order to cover this new claim, however, McCarthren’s
valid sentence-appeal waiver bars him from raising it on appeal.
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      McCarthren’s plea agreement contains a limited waiver of his appellate

rights. McCarthren “waive[d] any right to an appeal or other collateral review of

[his] sentence in any court,” unless one of two exceptions applied. The exceptions

included the following: (1) if the district court imposed a sentence that exceeded

the advisory guideline range; and (2) if the government appealed McCarthren’s

sentence.

      McCarthren concedes that his current challenge to the career-offender

enhancement does not fit within one of the exceptions to the sentence-appeal

waiver. The sentence did not exceed the advisory guideline range of 210 to 240

months of imprisonment, and the government has not appealed his sentence.

      Nor does McCarthren dispute that the government has established that he

knowingly and voluntarily agreed to the sentence-appeal waiver. We will enforce

an appeal waiver that was made knowingly and voluntarily. 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). An appeal waiver will be enforced if (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. Here, the district court

specifically questioned McCarthren about the waiver during the plea colloquy, and




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he indicated that he understood it. Accordingly, McCarthren’s appeal waiver is

valid and enforceable.

      Nevertheless, McCarthren maintains that an otherwise valid sentence-appeal

waiver should be unenforceable if it will result in a “miscarriage of justice.”

McCarthren contends that such a miscarriage of justice results when, as here, the

defendant receives the statutory maximum sentence because of an erroneous

career-offender enhancement.       He asserts that, without the career-offender

enhancement, his advisory guideline range would have been no higher than 92 to

115 months of imprisonment, less than half of the range under which he was

sentenced.

      “We have consistently enforced knowing and voluntary appeal waivers

according to their terms.” Bascomb, 451 F.3d at 1292. Where the terms of the

waiver apply, “[a]n appeal waiver includes the waiver of the right to appeal

difficult or debatable legal issues or even blatant error.” United States v. Grinard-

Henry, 399 F.3d 1294, 1296 (11th Cir. 2005); United States v. Howle, 166 F.3d

1166, 1169 (11th Cir. 1999) (“While it may appear unjust to allow criminal

defendants to bargain away meritorious appeals, such is the necessary consequence

of a system in which the right to appeal may be freely traded.”). Even “a vigorous

dispute about an issue during the sentencing proceedings does not preserve that

issue for appeal when the terms of the appeal waiver do not except it from the


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waiver.” Bascomb, 451 F.3d at 1296. Plus, the fact that a defendant’s challenge is

based on a Supreme Court decision that was issued after the defendant’s

sentencing does not alone except the challenge from the waiver. See United States

v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005) (holding that the defendant’s

appeal waiver applied to a challenge based in part on United States v. Booker, 543

U.S. 220 (2005), which was issued after the defendant’s sentencing).

      Nevertheless, we have recognized that “an effective waiver is not an

absolute bar to appellate review.” United States v. Johnson, 541 F.3d 1064, 1068

(11th Cir. 2008).    In Bushert, for example, we noted that “there are certain

fundamental and immutable legal landmarks within which the district court must

operate regardless of the existence of sentence appeal waivers.” Bushert, 997 F.2d

at 1350 n.18. Thus, we may decline to enforce a waiver where the sentence

exceeds the statutory maximum or is based on a constitutionally impermissible

factor such as race or religion. Id. And “[i]n extreme circumstances—for instance,

if the district court had sentenced [a defendant] to a public flogging—due process

may require that an appeal be heard despite a previous waiver.” Howle, 166 F.3d

at 1169 n.5.

      Here, however, McCarthren’s challenge does not implicate such

“fundamental and immutable legal landmarks.” Bushert, 997 F.2d at 1350 n.18.

He presents a challenge to the calculation of his guideline range and the application


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of the career-offender guideline.    That guideline was one that, according to

McCarthren’s counsel’s comments at the plea colloquy, McCarthren knew could

be an issue at sentencing, yet he agreed to the appeal waiver, anyway.

McCarthren’s sentence was below the statutory maximum and he does not assert

that his sentence was based on a constitutionally impermissible factor. See id.

And finally, even if McCarthren had not waived his right to appeal, the premise of

McCarthren’s challenge on appeal—that the Supreme Court’s decision in Mathis v.

United States, 136 S. Ct. 2243 (2016), abrogated our decision in Turner v. Warden

Coleman FCI (Medium), 709 F.3d 1328, 1341–42 (11th Cir. 2013)—has been

rejected by a panel of this Court, see United States v. Golden, 854 F.3d 1256, 1257

(11th Cir. 2017) (holding that Turner remains binding precedent in this Circuit

notwithstanding Mathis and Descamps v. United States, 133 S. Ct. 2276 (2013)),

and we are bound by that ruling, see, e.g., United States v. Steele, 147 F.3d 1316,

1317-18 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a panel

cannot overrule a prior one's holding even though convinced it is wrong.”). For

these reasons, no extreme circumstances exist here that would preclude

enforcement of the plain terms of the sentence-appeal waiver.           We therefore

GRANT the government’s motion to dismiss.




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