              Case: 18-14265    Date Filed: 05/24/2019   Page: 1 of 5


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-14265
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:18-cr-00187-SCB-TGW-3

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

RICHARD HAMILTON,

                                                             Defendant-Appellant.
                          ________________________

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

                                 (May 24, 2019)

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

PER CURIAM:

      The government moves to dismiss Hamilton’s appeal of his sentence,

arguing he waived his right to appeal pursuant to an appeal waiver. After careful
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review, we conclude Hamilton’s appeal waiver is enforceable and grant the

government’s motion.

                                          I.

      In April 2018, Hamilton was charged with conspiracy to distribute and to

possess with intent to distribute 100 kilograms or more of marijuana on board a

vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. §§

70503(a), 70506(a), (b), and 21 U.S.C. § 960(b)(2)(G). Hamilton pled guilty

pursuant to a plea agreement that included a sentence appeal waiver. Specifically,

Hamilton agreed to waive his right to “appeal [his] sentence on any ground,

including the ground that the [district] [c]ourt erred in determining the applicable

guidelines range pursuant to the . . . Guidelines.” His sentence appeal waiver

provided three exceptions, one of which allowed Hamilton to appeal if his sentence

“exceed[ed] the . . . applicable guidelines range as determined by the [district]

[c]ourt.”

      At Hamilton’s change of plea hearing, a magistrate judge explained the

sentence appeal waiver to Hamilton, emphasizing it waived his right to appeal the

district court’s determination of his guidelines range. The magistrate judge also

asked Hamilton if he understood his sentence appeal waiver and if he was entering

into it voluntarily and knowingly. Hamilton answered yes to both questions. After




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Hamilton pled guilty, the magistrate judge recommended the district court accept

Hamilton’s plea, and the district court did so.

      A probation officer prepared a Presentence Investigation Report (“PSR”).

The PSR calculated Hamilton’s initial guidelines range as 37 to 46 months.

However, the statutory minimum term of imprisonment for Hamilton’s offense was

60 months. See 21 U.S.C. § 960(b)(2)(G). For that reason, the PSR increased

Hamilton’s guidelines range to 60 months under § 5G1.1(b) of the Guidelines.

      At sentencing, Hamilton argued that the district court did not have to apply

§ 5G1.1(b) because his offense qualified for a safety valve exception. See 18

U.S.C. § 3553(f); USSG § 5C1.2. The safety valve exception, or § 5C1.2 of the

Guidelines, provides that a defendant may be sentenced to the applicable

guidelines range, without regard to a statutory mandatory minimum sentence, if the

defendant meets the criteria in 18 U.S.C. §§ 3553(f)(1)–(5). Following binding

precedent, the district court declined to apply the safety valve exception and

imposed the mandatory minimum sentence under § 5G1.1(b).

                                          II.

      We review de novo the validity of a sentence appeal waiver. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver is

enforceable so long as it was made knowingly and voluntarily. United States v.

Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 1993). To establish a waiver as

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knowing and voluntary, “[t]he government must show that either (1) the district

court specifically questioned the defendant concerning the sentence appeal waiver

during the [plea] colloquy, or (2) it is manifestly clear from the record that the

defendant otherwise understood the full significance of the waiver.” Id. at 1351.

      On appeal, Hamilton argues the district court erred in sentencing him to the

mandatory minimum of 60 months by applying § 5G1.1(b) instead of the safety

valve exception in § 5C1.2. He also argues Congress’s recent amendment to

§ 3553(f), which became effective on December 21, 2018 and specifically

designated Hamilton’s offense as qualifying for the safety valve exception,

requires us to vacate his sentence. See First Step Act of 2018, Pub. L. No. 115-

391, § 402, 132 Stat. 5194, 5221.

      Both of Hamilton’s arguments are barred by his appeal waiver because

Hamilton made a knowing and voluntary waiver of his right to appeal his sentence.

See Bushert, 997 F.2d at 1351. As a result, he cannot directly appeal his sentence

“on any ground,” including whether the district court erred in determining his

guideline range by applying § 5G1.1(b) or whether he should benefit from

Congress’s recent amendment to § 3553(f).

      Hamilton argues his appeal waiver does not apply because the imposition of

the five-year mandatory minimum resulted in a sentence that exceeded his

guidelines range of 37 to 46 months. However, the district court determined

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Hamilton’s guidelines range was 60 months, not 37 to 46 months, when it declined

to apply the safety valve exception in § 5C1.2. See USSG § 5G1.1 cmt.

(describing how § 5G1.1 may increase a sentence “under the guidelines” to the

mandatory minimum). As a result, the district court did not exceed Hamilton’s

guidelines range when it sentenced him to 60 months. Hamilton’s argument

therefore does not qualify for the exception in his appeal waiver.

      Hamilton last argues appeal waivers are unconstitutional. But the right to an

appeal is statutory, not constitutional, and this Court has held that knowing and

voluntary appeal waivers should be given their full effect. Bushert, 997 F.2d at

1347. As set out above, Hamilton’s appeal waiver was knowingly and voluntarily

made and is thus enforceable. We therefore grant the government’s motion and

dismiss Hamilton’s appeal.

      APPEAL DISMISSED.




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