           Case: 18-14796   Date Filed: 11/20/2019   Page: 1 of 19


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14796
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:17-cr-00467-MHH-TMP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


ZACHARY JERREL CHEEKS,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (November 20, 2019)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:
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       Zachary Cheeks appeals his conviction and sentence for one count of

possession with intent to distribute 50 grams or more of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). 1 He challenges the denial of his

pre-trial motion to suppress and two aspects of his sentence. Because the district

court properly denied the pre-trial motion to suppress, we affirm the conviction.

We find Cheeks’s challenges to his sentence foreclosed by an appeal waiver and

thus dismiss as to those challenges.

                                   I.      BACKGROUND

       In 2017, a federal grand jury indicted Zachary Cheeks on possession with

intent to distribute 50 grams or more of methamphetamine. Cheeks initially

pleaded not guilty. He then moved to suppress the drug evidence seized from his

car in connection with his arrest. He argued that the law enforcement officer who

conducted the search lacked reasonable suspicion to stop him and the officer

unlawfully prolonged the stop in violation of his Fourth Amendment right to be

free from unreasonable searches and seizures.




       1
          “Except as authorized by this subchapter, it shall be unlawful for any person knowingly
or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). “In the case of a violation
of subsection (a) of this section involving . . . 50 grams or more of methamphetamine . . . such
person shall be sentenced to a term of imprisonment which may not be less than 10 years or more
than life.” Id. § 841(b)(1)(A)(viii).

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      The district court held a hearing on the motion during which the following

evidence was presented. Officer Danny Turner of the Heflin, Alabama Police

Department testified that on April 6, 2017, while on patrol on the westbound side

of I-20, he saw Cheeks, on two separate occasions, make a lane change where his

turn signal came on but turned off before he transitioned from one lane to the

other. On that basis, Officer Turner initiated a traffic stop. He approached the

passenger side of the vehicle, rather than the driver side, in the interest of safety,

and saw a female passenger in the front seat. Officer Turner asked Cheeks, who

was driving, for his license, which Cheeks gave him. While he was talking to

Cheeks, Officer Turner smelled the distinct “odor of burnt marijuana emitting from

the passenger area of the compartment.” He then started looking around the

vehicle and saw marijuana residue on the inside handle area of the passenger side

door. Officer Turner then returned to his patrol car where he ran Cheeks’s criminal

history check, which revealed that Cheeks “had a criminal history for previous

drug offenses.”

      Officer Turner then returned to Cheeks’s vehicle and told him that he would

give him a written warning for the improper lane change and asked him to come

back to the patrol car while Officer Turner wrote the warning. Cheeks stepped out

of the car. Officer Turner observed that the passenger looked nervous, which he

thought was strange because she would not receive a ticket for the traffic violation.


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Officer Turner asked for her name and learned that her last name was Barclay. He

asked for her driver’s license, which she gave to him. While Barclay was looking

for her license, Officer Turner asked her about what she and Cheeks had been

doing that day. She said that they had gone somewhere in Georgia the day before

to see friends, but she could not tell him the specific place in Georgia and did not

disclose the names of the friends. According to Barclay, she and Cheeks had spent

the night in Georgia and were now returning home. Officer Turner then returned

to his patrol car with Cheeks and began asking Cheeks about the couple’s travel

plans. Cheeks said that they had recently left the Talladega or St. Clair area, had

gone to Tallapoosa, Georgia, “[p]layed some scratch offs,” and were now on their

way home. Cheeks also said that he and Barclay did not know anyone in Georgia.

At this point Office Turner also learned that the car did not belong to either Cheeks

or Barclay.

      Officer Turner testified that at that point, he suspected drug activity based on

the fact that the vehicle did not belong to either Cheeks or Barclay, the odor of

burnt marijuana, the marijuana residue, Barclay’s nervous behavior, and the

conflicting information he was given regarding travel plans. Officer Turner then

asked Cheeks if he could search the vehicle, and Cheeks said, according to Officer

Turner, “yes or yeah.” Officer Turner then leaned between the two front seats of

the car and found on the rear floorboard a clear plastic container containing what


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he recognized immediately as methamphetamine. Officer Turner placed Cheeks

under arrest and gave Cheeks his Miranda warnings. Cheeks then admitted that

the methamphetamine was his and explained that Barclay had nothing to do with it.

      On cross-examination, Officer Turner admitted that had the improper lane

change been the only conduct at issue, the stop would have been shorter, but the

marijuana odor and residue caused him to extend the stop. He also stated that he

did not use the narcotics detection dog that was with him, take pictures of the

marijuana residue in the car, or find any marijuana-related paraphernalia in the car.

Officer Turner also explained that he understood Alabama law to require that a

driver, when making a lane change, signal for 100 feet prior to making the lane

change and continuously throughout the lane change.

      The district court denied Cheeks’s motion to suppress. The district court

explained that it found Officer Turner’s testimony credible and consistent with the

video recording of the traffic stop. The court then determined that the initiation of

the traffic stop was valid because a reasonable officer could have believed that

Alabama law, specifically Ala. Code § 32-5A-133, requires the driver to signal

throughout a lane change. Further, the district court determined that the odor and

residue of marijuana gave Officer Turner probable cause, and “[a]t a bare

minimum” reasonable suspicion, to continue the traffic stop to investigate drug

crimes. The court further explained that even if Officer Turner were mistaken


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about the marijuana odor, the other circumstances of the stop about which Officer

Turner credibly testified gave rise to reasonable suspicion.

       Cheeks then entered into a plea agreement with the government. Cheeks

agreed to provide truthful and complete information regarding his crimes,

including the extent of participation of other individuals. In the event that Cheeks

provided “substantial assistance,” the government agreed that it “may” move for a

downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e),2 and that it

would recommend a reduction for acceptance of responsibility and a sentence at

the low end of the Guideline range. Under the plea agreement, Cheeks agreed to

waive his right to appeal or challenge on collateral review his conviction and

sentence except with regard to “[a]ny sentence imposed in excess of the applicable

statutory maximum sentence(s),” “[a]ny sentence that constitutes an upward

departure from the advisory guideline sentencing range calculated by the court at

the time sentence is imposed,” “[i]neffective assistance of counsel,” and the court’s

ruling on his motion to suppress.




       2
         “Upon motion of the government stating that the defendant has provided substantial
assistance in the investigation or prosecution of another person who has committed an offense,
the court may depart from the guidelines.” U.S.S.G. § 5K1.1. “Upon motion of the
Government, the court shall have the authority to impose a sentence below a level established by
statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed an offense.” 18 U.S.C.
§ 3553(e).
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      At the change of plea hearing, the district court discussed the appeal waiver

with Cheeks. The district court told Cheeks, “you are waiving, in other words,

giving up your right to challenge on appeal or in a motion in this Court anything

having to do with sentencing. You’ve reserved . . . four limited grounds that would

still give you a basis for appeal.” The district court set out each of the four

grounds for appeal and explained that “[o]ther than those four grounds under this

section . . . you are giving up your rights to appeal.” The court then asked Cheeks

if he had an adequate opportunity to discuss the waiver with his attorney, if he

understood the rights he was giving up, and if he was giving up those rights

voluntarily. Cheeks responded “yes” to each question. The district court stated

“Mr. Cheeks, based on the written materials that have been presented to the Court

and based on your answers to the Court’s questions, the Court finds that you are

acting voluntarily in this matter” and accepted the guilty plea.

      Prior to Cheeks’s entry of his guilty plea, the government filed a notice that

it intended to seek an enhanced sentence under 21 U.S.C. § 851 based on Cheeks’s

prior 2015 Alabama conviction for unlawful possession of a controlled substance.

Cheeks opposed the enhancement, arguing that his 2015 plea was not knowing,

intelligent, and voluntary for various reasons, including that he suffers from

intellectual deficiencies that impaired his ability to understand the consequences of

the 2015 plea. In considering Cheeks’s objection to the § 851 enhancement, the


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district court heard testimony from Cheeks, clinical psychologist Dr. Henry

Griffith, and Cheeks’s counsel at the time of his 2015 plea. After considering all

the testimony, argument of counsel, related filings, and the record, the district court

ultimately concluded that Cheeks’s 2015 plea was knowing and voluntary and

applied the § 851 enhancement. The district court calculated the applicable

sentencing guideline term as 240 months’ imprisonment (the statutory mandatory

minimum) but granted the government’s motion for a downward departure based

on substantial assistance, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e),

and sentenced Cheeks to 180 months’ imprisonment.

                                II.    DISCUSSION

A. Motion to Suppress

      “Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Jordan, 635 F.3d

1181, 1185 (11th Cir. 2011) (quoting United States v. Bervaldi, 226 F.3d 1256,

1262 (11th Cir. 2000)). We construe all facts in the light most favorable to the

government, the party that prevailed in the district court. See United States v.

Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). “[W]e afford substantial deference

to the factfinder’s credibility determinations.” Id.




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       Cheeks argues the district court erred in denying his motion to suppress the

drug evidence because Officer Turner lacked reasonable suspicion to stop his car

based on the improper lane change. He argues alternatively that even if Officer

Turner had reasonable suspicion for the stop, he lacked reasonable suspicion to

extend the stop by investigating possible drug crimes. We evaluate each argument

in turn.

       i. Reasonable Suspicion Based on the Improper Lane Change

       Cheeks first argues that Officer Turner unreasonably seized him in violation

of the Fourth Amendment because he did not violate Alabama law by failing to

signal throughout a lane change. The Fourth Amendment provides for “the right of

the people to be secure . . . against unreasonable searches and seizures.” U.S.

Const. amend. IV. A traffic stop is a “seizure” within the meaning of the Fourth

Amendment. Whren v. United States, 517 U.S. 806, 809–10 (1996). For a traffic

stop to comply with—i.e., be reasonable under—the Fourth Amendment, the

officer must have “reasonable suspicion” of criminal activity. Heien v. North

Carolina, 135 S. Ct. 530, 536 (2014); United States v. Strickland, 902 F.2d 937,

940 (11th Cir. 1990) (“[A] police officer may stop a vehicle ‘when there is . . .

probable cause to believe that a driver is violating any one of the multitude of

applicable traffic and equipment regulations relating to the operation of motor

vehicles.’” (quoting Delaware v. Prouse, 440 U.S. 648, 660 (1979))). In other


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words, the officer must have “a particularized and objective basis for suspecting

the person stopped of breaking the law.” Heien, 574 U.S. at 536 (quoting

Navarette v. California, 572 U.S. 393, 396 (2014)).

      We must thus determine whether Officer Turner had reasonable suspicion to

stop Cheeks based on his observation that Cheeks did not signal throughout the

entire time he was changing lanes. In other words, we must determine whether

Officer Turner had “a particularized and objective basis” to suspect Cheeks of

criminal activity. Id. Officer Turner testified that he stopped Cheeks’s car because

on two separate occasions he observed Cheeks turn his turn signal on and then turn

it off before completing the transition from one lane to the other. Officer Turner

also testified that his understanding at the time was that Alabama Code § 32-5A-

133 requires a driver to signal through the completion of a lane change. Alabama

Code § 32-5A-133(a) provides that “[n]o person shall turn a vehicle or move right

or left upon a roadway . . . without giving an appropriate signal in the manner

hereinafter provided.” Alabama Code § 32-5A-133(b) provides that “[a] signal of

intention to turn right or left when required shall be given continuously during not

less than the last 100 feet traveled by the vehicle before turning.”

      We must determine whether Officer Turner could reasonably have believed

that Alabama law prohibited Cheeks from turning off his turn signal before he had

completed the lane change. Cheeks argues that Alabama Code § 32-5A-133


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cannot reasonably be read in such manner. We disagree. The Supreme Court has

explained that an officer has reasonable suspicion to make a traffic stop even if

such stop was based on an incorrect reading of the law so long as such mistake of

law was reasonable. Heien, 135 S. Ct. at 540. In Heien, the Supreme Court

determined that an officer had reasonable suspicion to make a traffic stop where he

stopped a driver for having only one working brake light because it was objectively

reasonable to believe that North Carolina law required two working brake lights.

Id. The Court explained that reasonable suspicion arises from an officer’s

understanding of the facts and of the relevant law, and that a reasonable mistake of

law just like a reasonable mistake of fact does not preclude reasonable suspicion.

Id. at 536.

      As an initial matter, it is reasonable to conclude that the signal requirement

applies to lane changes in addition to turns. Section 32-5A-133(a) says that it will

define the appropriate signal for both turning and changing lanes, and the only

requirement in the statute is the one contained in subsection (b)—that the signal

must be given continuously for 100 feet before turning. By the statute’s plain text,

it is not unreasonable for an officer to believe that the 100-feet requirement applies

both when changing lanes and when turning. Further, it is reasonable to conclude

that the 100-feet requirement means that the signal must be given through

completion of the lane change. Section 32-5A-133 provides that the signal must be


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“given continuously during not less than the last 100 feet” before turning. Unless

the driver signals until he is entirely within the next lane, he has not signaled

continuously for the last 100 feet before the lane change. Thus, at the very least,

Officer Turner’s reading of the statute is reasonable, and consequently, there was

reasonable suspicion justifying the stop. See Heien, 574 U.S. at 540.

      ii. Reasonable Suspicion to Investigate Drug Crimes

      Even stops initially supported by reasonable suspicion may nonetheless

violate the Fourth Amendment if the officer “diverts from the stop’s purpose and

adds time to the stop in order to investigate other crimes” without reasonable

suspicion. United States v. Campbell, 912 F.3d 1340, 1353 (11th Cir. 2019)

(explaining that under the standard emanating from Rodriguez v. United States,

135 S. Ct. 1609, 1614–16 (2015), a stop is unlawfully prolonged when an officer

“(1) conduct[s] an inquiry aimed at investigating other crimes (2) that adds time to

the stop (3) without reasonable suspicion”). “[T]he tolerable duration of police

inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to

address the traffic violation that warranted the stop, and attend to related safety

concerns.” Rodriguez, 135 S. Ct. at 1614 (internal citation omitted). “Authority

for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably

should have been—completed.” Id.




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      The mission of the traffic stop includes “ordinary inquiries incident to [the

traffic] stop.” Id. at 1615 (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)).

Those ordinary inquiries typically include “checking the driver’s license,

determining whether there are outstanding warrants against the driver, and

inspecting the automobile’s registration and proof of insurance.” Id. They also

include questions about travel plans. Campbell, 912 F.3d at 1354. The officer

may also take “negligibly burdensome precautions” that are necessary to complete

the stop safely. Rodriguez, 135 S. Ct. at 1616. What the officer may not do is

extend the duration of the stop in order to investigate, without reasonable

suspicion, other crimes. Campbell, 912 F.3d at 1353.

      However, an officer may lawfully extend the stop if he acquires an

objectively reasonable and articulable suspicion that illegal activity has occurred or

is occurring. See Rodriguez, 135 S. Ct. at 1615; accord United States v. Ramirez,

476 F.3d 1231, 1237 (11th Cir. 2007). In determining whether the extension of a

stop is justified by reasonable suspicion of criminal activity, a court “must look at

the ‘totality of the circumstances’ of each case to see whether the detaining officer

has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United

States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting Cortez, 449 U.S. at 417). If a

stop is unlawfully prolonged without reasonable suspicion in violation of the

Fourth Amendment, any evidence obtained as a result of that constitutional


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violation generally must be suppressed. See Wong Sun v. United States, 371 U.S.

471, 484–85 (1963).

      Officer Turner testified that while he was getting Cheeks’s driver’s license,

he smelled the odor of burnt marijuana and saw marijuana residue on the inside of

the passenger door. Our precedent makes clear that an officer’s level of suspicion

rises to the level of probable cause when he detects “what he [knows] from his law

enforcement experience to be the odor of marijuana.” United States v. Tobin, 923

F.2d 1506, 1512 (11th Cir. 1991). Accordingly, the smell of marijuana gave

Officer Turner reasonable suspicion that additional criminal activity had occurred

or was occurring, which justified extending the stop. Cheeks argues that Officer

Turner’s testimony that he smelled marijuana is not credible based on the fact that

he did not arrest Cheeks or Barclay for marijuana possession, did not photograph

the marijuana residue, did not use a drug detection dog, and did not interrogate

Cheeks or Barclay specifically about marijuana. However, the district court found

Officer Turner’s testimony credible, and this Court affords “substantial deference”

to the district court’s credibility determinations. Lewis, 674 F.3d at 1303. “We

accept the factfinder’s choice of whom to believe unless it is contrary to the laws

of nature, or is so inconsistent or improbable on its face that no reasonable fact

finder could accept it.” United States v. Holt, 777 F.3d 1234, 1255 (11th Cir.

2015) (quoting United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.


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2002)). The fact that Officer Turner smelled marijuana and searched the vehicle

(with Cheeks’s consent) without employing a drug detection dog or taking

photographs is not so improbable that no reasonable fact finder could believe it. 3

Accordingly, Officer Turner had reasonable suspicion justifying an extension of

the stop to investigate drug crimes. See Rodriguez, 135 S. Ct. at 1615. Moreover,

Cheeks does not contest the validity of the consent he gave Officer Turner to

search the vehicle. Accordingly, the district court did not err in denying the

motion to suppress.

B. Sentencing

       Cheeks raises two issues with respect to his sentence: (1) whether the district

court committed reversible error in increasing his sentence based on a prior

conviction because the prior conviction was invalid, and (2) whether the district

court erred in not considering additional mitigating factors after granting the

government’s 18 U.S.C. § 3553(e) motion. The government responds that Cheeks

waived those issues pursuant to an appeal waiver in his plea agreement. Cheeks

argues that the appeal waiver is invalid because he did not knowingly and

voluntarily waive his right to appeal, due to mental deficiencies that were

discovered after he pleaded guilty. He also argues that even if the waiver is valid,


       3
        In fact, it was entirely reasonable that Officer Turner did not use the drug detection dog
or photograph the marijuana residue since he found the container of methamphetamine almost
immediately after beginning his search of the vehicle.
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his arguments fall within an exception to the appeal waiver because they concern a

sentence above the applicable Guideline range. We address each argument in turn.

      ”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 is valid if it

was knowingly and voluntarily entered. United States v. Bushert, 997 F.2d 1343,

1350 (11th Cir. 1993). To demonstrate that an appeal waiver was knowingly and

voluntarily entered, “[t]he government must show that either (1) the district court

specifically questioned the defendant concerning the sentence appeal waiver during

the Rule 11 colloquy, or (2) it is manifestly clear from the record that the defendant

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

either of these conditions is satisfied, we will dismiss “without requiring the

government to brief the merits of the appeal.” United States v. Buchanan, 131

F.3d 1005, 1008 (11th Cir. 1997).

      The district court’s discussion of the appeal waiver at Cheeks’s change of

plea hearing was sufficiently specific to ensure that Cheeks knew the rights that he

was waiving. The district court explained “you are waiving, in other words, giving

up your right to challenge on appeal or in a motion in this Court anything having to

do with sentencing. You’ve reserved . . . four limited grounds that would still give

you a basis for appeal.” The district court then set out the four grounds for appeal

and explained that “[o]ther than those four grounds under this section . . . you are


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giving up your rights to appeal.” Cheeks confirmed that he understood the rights

he was waiving. The court further asked if Cheeks felt he had an adequate

opportunity to discuss the waiver with his attorney, to which Cheeks responded

“yes.” The district court then explained that “based on [Cheeks’s] answers,” it

found he was “acting voluntarily” when pleading guilty. The district court thus

explained the appeal waiver specifically, questioned Cheeks about it, and

determined that he had knowingly and voluntarily entered into it. Accordingly, the

colloquy establishes that Cheeks “understood the nature and extent of the appeal

waiver and agreed to it.” See Buchanan, 131 F.3d at 1008.

      Cheeks argues that his appeal waiver is nevertheless invalid because it is not

“manifestly clear” from the record that he understood the significance of the

waiver based on evidence about his intellectual capacity that he presented at

sentencing. Although Cheeks presented the testimony of Dr. Griffith in support of

his argument that his intellectual deficiencies prevented him from knowingly and

voluntarily pleading guilty to his 2015 Alabama drug offense, he at no point

argued that his guilty plea in the present case was not knowingly and voluntarily

entered. The district court, however, recognized sua sponte at sentencing that the

proffered testimony raised issues not only with respect to the 2015 guilty plea but

with respect to the guilty plea in the present case as well. After examining Dr.

Griffith’s testimony, the court nevertheless concluded that “the guilty plea in this


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case, as the Court found at the plea hearing, was knowingly and voluntarily

entered.” The court explained that Dr. Griffith’s testimony indicated that Cheeks

could understand information told to him by his attorney, including the

consequences of a plea. Thus, not only did the district court question Cheeks

specifically about the appeal waiver at his plea colloquy, it took into account

testimony Cheeks presented after the fact on a different issue and still determined

that the plea and appeal waiver were knowingly and voluntarily entered. In such

circumstances, we have little difficulty concluding that the appeal waiver was

knowingly and voluntarily entered under Bushert.

      Cheeks also argues that even if the appeal wavier is valid, his appeal falls

outside the scope of the appeal waiver because the district court imposed a

sentence above the sentencing Guideline range. Cheeks contends that the

applicable sentencing Guideline range was 140 to 175 months instead of the

240-month statutory mandatory minimum that the PSI and the district court said

constituted the applicable Guideline term. According to Cheeks, his 180-month

sentence is thus above the Guideline range. The problem for Cheeks is that the

appeal waiver exception on which he relies applies to “[a]ny sentence that

constitutes an upward departure from the advisory guideline sentencing range

calculated by the court at the time sentence is imposed.” (emphasis added). At the

time of sentencing, the district court calculated the Guideline term as 240 months.


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Cheeks’s 180-month sentence4 does not constitute an upward departure from the

court’s calculation. Accordingly, his appeal waiver bars us from considering this

issue.

                                  III.   CONCLUSION

         We affirm the denial of the motion to suppress. We otherwise dismiss the

appeal based on the valid appeal waiver.

         AFFIRMED IN PART AND DISMISSED IN PART.




         4
       The district court had statutory authority to impose a sentence lower than the mandatory
minimum based on the substantial-assistance reduction available in 18 U.S.C. § 3553(e).
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