                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4854


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.


JARA MEOTTA ISHON FLOWERS,

                    Defendant - Appellant.


Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:16-cr-00023-RJC-DCK-1)


Argued: May 10, 2018                                              Decided: June 4, 2018


Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam opinion.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Ross Hall Richardson, Interim Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,
for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Jara Meotta Ishon Flowers (“Appellant”) pled guilty in the district court to Hobbs

Act extortion under color of official right in violation of 18 U.S.C. § 1951(a). She

appeals her conviction. The Government filed a motion to dismiss the appeal as barred

by the appellate waiver in Appellant’s plea agreement. We grant the Government’s

motion and dismiss the appeal in part. We affirm the district court’s decision as to the

remainder of the appeal.

                                             I.

                                            A.

       While employed as a correctional officer at a state operated correctional facility in

North Carolina, Appellant entered into an arrangement with at least one inmate at the

facility to use her position to smuggle contraband into the facility in exchange for

payment. Per this agreement, the inmate would provide Appellant with the contact

information of an individual outside the prison whom Appellant would then meet to

obtain the contraband and payment for her services.

       In 2015, state and federal authorities began an investigation into the smuggling of

contraband into the correctional facility where Appellant worked. On July 13, 2015, an

undercover agent recorded a conversation with Appellant during which she discussed

receiving payment in exchange for smuggling the contraband into the facility. Appellant

was later arrested.




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                                              B.

       In February 2016, a grand jury indicted Appellant and charged her with Hobbs Act

extortion under color of official right in violation of 18 U.S.C. § 1951(a). She filed a

motion to dismiss the indictment, arguing that pursuant to Justice Thomas’s dissent in

Ocasio v. United States, 136 S. Ct. 1423 (2016), the Hobbs Act does not apply to bribery.

The district court denied Appellant’s motion because “the majority opinion [in Ocasio]

did not upset the existing state of the law [pursuant to Evans v. United States, 504 U.S.

255 (1992)] that the Hobbs Act covers bribery.” J.A. 18. 1

       After Appellant’s motion to dismiss was denied, she entered into a plea agreement

with the Government. Under the terms of the plea agreement, Appellant waived her right

to challenge her conviction except as to claims for ineffective assistance of counsel or

prosecutorial misconduct. Appellant also reserved “the right to appeal as to the issue of

whether 18 U.S.C. § 1951 extortion under color of official right is properly charged in

bribery cases per the dissent in [Ocasio].” J.A. 34 (quoting J.A. 73 (sealed)).

       On July 28, 2016, the district court 2 conducted a plea hearing pursuant to Rule 11

of the Federal Rules of Criminal Procedure. During the hearing, the Government read

from the plea agreement, specifically mentioning Appellant’s waiver of “all such rights to

contest the conviction and/or sentence” in the absence of ineffective assistance of counsel


       1
           Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.
       2
           Appellant consented to having a magistrate judge preside over this proceeding.


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or prosecutorial misconduct. J.A. 34. The Government clarified that Appellant also

“reserve[d] the right to appeal as to the issue of whether 18 U.S.C. [§] 1951 extortion

under color of official right is properly charged in bribery cases per the dissent in

[Ocasio].” Id. Appellant’s counsel emphasized, “[T]his is a conditional plea and what’s

reserved is the right to appeal the District Court’s denial of a . . . pretrial motion to

dismiss based on the Ocasio dissent.” Id. at 35–36.

      The district court then addressed Appellant as follows:

              THE COURT: Now, you are waiving some rights you have to
              appeal. This case is a little bit unusual and I think we covered
              that pretty clearly here, but you are nonetheless waiving some
              rights you have to appeal with some exceptions. Do you
              understand that?

              THE DEFENDANT: Yes, Your Honor.

              THE COURT: Okay. Well, let me ask you two standard
              questions, then, on that topic. Do you understand that with
              those exceptions you are waiving the right to appeal your
              conviction and/or your sentence in the plea agreement? Do
              you understand that?

              THE DEFENDANT: Yes, Your Honor.

              THE COURT: You also understand that with those
              exceptions you are also waiving the right to challenge your
              conviction and/or your sentence in what’s called a “post-
              conviction proceeding”?

              THE DEFENDANT: Yes, Your Honor.

J.A. 36–37.


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       At the conclusion of the plea hearing, the district court determined that

Appellant’s plea was “knowingly and voluntarily made, and that [Appellant]

underst[ood] the charges, potential penalties, and consequences of her plea.” J.A. 40.

The district court further found “that [Appellant’s] plea [was] supported by an

independent basis in fact, containing each of the elements of the offense to which she is

pleading.” Id. Therefore, the district court accepted Appellant’s guilty plea. It later

sentenced her to 18 months of imprisonment. Appellant timely appealed.

                                            II.

       Appellant’s principal argument on appeal is that her conduct does not constitute an

“official act” -- as that term is defined in McDonnell v. United States, 136 S. Ct. 2355

(2016) -- necessary to prove Hobbs Act extortion under color of official right. The

Government contends that Appellant waived her right to present this argument by

entering into a plea agreement that contained an appellate waiver.

       “We generally will enforce a waiver to preclude a defendant from appealing a

specific issue if the record establishes that the waiver is valid and that the issue being

appealed is within the scope of the waiver.” United States v. Thornsbury, 670 F.3d 532,

537 (4th Cir. 2012) (internal alterations and quotation marks omitted). We agree with the

Government that the appellate waiver is valid and that Appellant’s argument on appeal

falls within the scope of the waiver. Accordingly, we grant the Government’s motion and

dismiss the appeal in part.




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                                             A.

       The appellate waiver in Appellant’s plea agreement is valid. “An appellate waiver

is valid if the defendant’s agreement to the waiver was knowing and intelligent.”

Thornsbury, 670 F.3d at 537.       “Generally, if a district court questions a defendant

regarding the waiver of appellate rights during the Rule 11 colloquy and the record

indicates that the defendant understood the full significance of the waiver, the waiver is

valid.” Id. (citing United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)); see

United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016) (“[A] properly conducted Rule

11 colloquy establishes the validity of the waiver.”).

       Because the Government’s counsel and Appellant’s counsel discussed the scope of

the waiver at the plea hearing, and the district court specifically questioned Appellant

about her intent to waive her right to appeal her conviction, the appellate waiver in the

plea agreement is valid. See United States v. Copeland, 707 F.3d 522, 528 (4th Cir.

2013) (holding that appellate waiver valid where “the district court read the appeal

waiver aloud and questioned [the defendant] as to whether he ‘underst[ood] the appellate

rights [he was] giving up in that paragraph’”).

                                             B.

       Further, the principal issue Appellant seeks to raise on appeal is within the scope

of the appellate waiver. Appellant contends that her conduct does not constitute an

“official act” -- as that term is defined in McDonnell v. United States, 136 S. Ct. 2355

(2016) -- necessary to prove Hobbs Act extortion under color of official right. This issue

is not an assertion of ineffective assistance of counsel or prosecutorial misconduct. And

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the issue Appellant specifically reserved in her plea agreement -- “whether 18 U.S.C.

§ 1951 extortion under color of official right is properly charged in bribery cases per the

dissent in [Ocasio v. United States, 136 S. Ct. 1423 (2016)]” -- does not encompass the

McDonnell issue Appellant now raises.

       Justice Thomas’s dissent in Ocasio opines that Hobbs Act extortion under color of

official right does not cover bribery. 136 S. Ct. at 1437 (Thomas, J., dissenting). The

dissent asserts that the Supreme Court’s decision in Evans v. United States, 504 U.S. 255

(1992) -- which defined Hobbs Act extortion under color of official right as “the rough

equivalent of . . . taking a bribe,” id. at 260 -- “wrongly equated extortion with bribery.”

Ocasio, 136 S. Ct. at 1437 (Thomas, J., dissenting). By contrast, the Court in McDonnell

applied Evans’s definition of Hobbs Act extortion under color of official right in

reviewing the conviction of a defendant who “had accepted bribes.” 136 S. Ct. at 2365.

Because McDonnell dealt with Hobbs Act extortion under color of official right in a

bribery case, it cannot possibly form the basis for an argument that Hobbs Act extortion

under color of official right is not “properly charged in bribery cases.”

       Indeed, this is precisely why Appellant’s briefs in this appeal present the two

issues in the alternative. And significantly, the Supreme Court had not yet decided

McDonnell at the time Ocasio was decided, so neither the Ocasio majority opinion nor

Justice Thomas’s dissent relied on McDonnell. Thus, the principal issue Appellant seeks

to raise on appeal falls within the scope of the valid appellate waiver in her plea

agreement.



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                                             C.

       Under certain circumstances, “[w]e will refuse to enforce an otherwise valid

waiver if to do so would result in a miscarriage of justice.” Adams, 814 F.3d at 182. We

conclude that no such circumstances exist in this case.        Therefore, we enforce the

appellate waiver in Appellant’s plea agreement.

                                            III.

       Appellant also argues, pursuant to the reasoning articulated by Justice Thomas’s

dissent in Ocasio v. United States, 136 S. Ct. 1423 (2016), that Evans v. United States,

504 U.S. 255 (1992), was wrongly decided. Like the district court, “we are not free to

overrule or ignore the Supreme Court’s precedents.” United States v. Cheek, 415 F.3d

349, 353 (4th Cir. 2005). Accordingly, we affirm the district court’s order denying

Appellant’s motion to dismiss the indictment on this basis.

                                            IV.

       For the foregoing reasons, we grant the Government’s motion to dismiss the

appeal in part. We affirm the district court’s decision as to the remainder of the appeal.



                                                                    DISMISSED IN PART,
                                                                     AFFIRMED IN PART




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