                                                               [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 11-10342         ELEVENTH CIRCUIT
                                                    OCTOBER 13, 2011
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                D.C. Docket No. 8:09-cr-00198-SCB-TGW-1



UNITED STATES OF AMERICA,

                                 llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                              versus

LEEOTIS WILSON,

                              llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                       ________________________

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

                             (October 13, 2011)

Before HULL, PRYOR, and FAY, Circuit Judges.

PER CURIAM:
      Leeotis Wilson appeals his 120-month sentence, imposed after he pleaded

guilty to possession with intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). On appeal, Wilson argues that:

(1) the district court erred in dismissing his 28 U.S.C. § 2255 claim without

addressing all of his claims of ineffective assistance of counsel; (2) the

government breached the plea agreement; (3) he did not knowingly and

voluntarily waive his right to appeal his sentence; (4) the district court abrogated

the appeal waiver when it allowed him to file an out-of-time appeal; and (5) his

sentencing counsel was ineffective and his sentence was procedurally

unreasonable. For the reasons set forth below, we dismiss Wilson’s claim as to his

§ 2255 case; affirm as to his breach of the plea agreement argument; and dismiss

his claims regarding the abrogation of the appeal waiver, ineffectiveness of

sentencing counsel, and procedural reasonableness of his sentence.

                                          I.

      Wilson was indicted for possessing with the intent to distribute five grams

or more of cocaine base. The government filed an information and notice pursuant

to 21 U.S.C. § 851, asserting that it planned to seek enhanced penalties under 21

U.S.C. § 841(b)(1)(B) based on Wilson’s two prior state felony drug convictions.




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      Wilson and the government entered into a written plea agreement, which

acknowledged that the statutory minimum sentence was ten years’ imprisonment

and that the statutory maximum sentence was life imprisonment. The plea

agreement included a sentence appeal waiver, which provided that Wilson agreed

that the court had

      jurisdiction and authority to impose any sentence up to the statutory
      maximum and expressly waive[d] the right to appeal [his] sentence or
      to challenge it collaterally, including but not limited to the filing of a
      28 U.S.C. § 2255 petition, on any ground, including the ground that
      the [c]ourt erred in determining the applicable guidelines range.

However, Wilson would be allowed to appeal his sentence if it: (1) exceeded the

guideline range as determined by the court; (2) exceeded the statutory maximum

penalty; or (3) violated the Eighth Amendment. Wilson would be released from

the waiver if the government appealed his sentence. (Id.). Wilson and his attorney

both signed the plea agreement.

      At his plea hearing, Wilson testified that he and his attorney had discussed

every page of the plea agreement, and he understood each page of the agreement.

Wilson understood that his mandatory minimum term of imprisonment was ten

years and that his maximum sentence was life imprisonment. The magistrate

reviewed the plea agreement and explained to Wilson that he could only appeal his

sentence if it exceeded the guideline range as determined by the court, exceeded

                                          3
the statutory maximum sentence of life imprisonment, or violated the Eighth

Amendment. Wilson testified that he understood the appeal waiver. Additionally,

the magistrate explained that Wilson could not appeal the court’s calculation of his

guideline range, nor could he assert that his attorney was ineffective as to the

Sentencing Guidelines. Wilson testified that he understood these restrictions, he

had no questions about the appeal waiver, and he agreed to the appeal waiver

freely and voluntarily. The magistrate found that Wilson pleaded guilty freely,

voluntarily, and knowingly. The district court accepted the guilty plea.

      According to the presentence investigation report, Wilson had a guideline

range of 77 to 96 months’ imprisonment. However, Wilson’s guideline range

became 120 months’ imprisonment due to the § 851 enhancement. At Wilson’s

sentencing hearing, his attorney stated that they did not object to the validity of the

prior convictions referenced in the government’s information and notice under

§ 851. However, he believed that the enhanced statutory minimum sentence was

unwarranted because his guideline range would have been only 77 to 96 months

without the enhancement or only 24 to 30 months if a 1:1 crack to cocaine ratio

was used. The court stated that it considered the advisory guideline range, 18

U.S.C. § 3553, and the mandatory minimum sentence, and it imposed a 120-month

sentence.

                                           4
      After Wilson’s time to appeal his judgment expired, he filed a motion to

vacate his sentence under 28 U.S.C. § 2255, in which he argued that his attorney

was ineffective for failing to: (1) file a notice of appeal when Wilson requested

that one be filed; (2) object to the use of Wilson’s prior convictions to enhance his

mandatory minimum sentence; and (3) inform the court that Wilson’s prior

convictions were actually misdemeanors for the purpose of enhancing his

sentence. Wilson also requested that his sentence be reduced pursuant to the Fair

Sentencing Act. The clerk filed all further pleadings related to the § 2255 motion

under case number 8:10-cv-2341.

      The court granted the § 2255 motion, but only to the extent that Wilson was

allowed to file a belated appeal in his criminal case. The court explained that:

(1) the government had requested that Wilson be allowed to file an appeal; (2) this

result would serve “the interest of judicial economy”; and (3) it was not making

any findings as to the merits of Wilson’s ineffective assistance of counsel claims.

Therefore, the court would vacate its original judgment in Wilson’s criminal case

and impose the same sentence in an amended judgment. Wilson did not appeal

this order.

      The same day, the court entered an order in Wilson’s criminal case vacating

his criminal judgment, resentencing him to a 120-month sentence, and advising

                                          5
him that he had 14 days to appeal the order. Wilson filed a notice of appeal in this

case, which listed only Wilson’s criminal case number, stated “CRIMINAL

CASE” under the case number, and stated that Wilson was appealing “the

Amended Judgment and Sentence entered in this case.”

                                         II.

      We examine our jurisdiction sua sponte and review jurisdictional questions

de novo. United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). A

defendant must file a notice of appeal, which must “designate the judgment, order,

or part thereof being appealed.” Fed.R.App.P. 3(a)(1), (c)(1)(B). Although a

defendant must file a notice of appeal within 14 days of the entry of the judgment

appealed, a district court may allow an out-of-time appeal as a remedy in a § 2255

case. See United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000);

Fed.R.App.P. 4(b)(1)(A)(i). In such a case, the district court is to vacate the

criminal judgment the defendant seeks to appeal and reimpose the original

sentence. Phillips, 225 F.3d at 1201. A defendant may, but is not required to, file

all of his collateral challenges in a “§ 2255 motion seeking an out-of-time appeal.”

McIver v. United States, 307 F.3d 1327, 1331 n.2 (11th Cir. 2002). When a

defendant does raise grounds in a § 2255 motion in addition to the request for an

out-of-time appeal, the preferred procedure is to dismiss the additional claims

                                          6
without prejudice or to hold the claims in abeyance until the direct appeal is

resolved. Id. Although a court is generally required to resolve all claims in a

petition for a writ of habeas corpus under 28 U.S.C. § 2254, there is “equally clear

precedent” stating “that collateral claims should not be entertained while a direct

appeal is pending.” Id.

      In a procedurally distinguishable case, we addressed a jurisdictional issue

similar to the one at issue here. United States v. Futch, 518 F.3d 887, 891 (11th

Cir. 2008). In Futch, the defendant had been granted a resentencing due to a

change in his criminal history category, but the district court had denied his § 2255

motion as to his claims regarding his conviction. Id. at 890. Following his

resentencing, the defendant filed a single notice of appeal, which specified “that

he was appealing the final order entered in this matter . . . and all interim orders.”

Id. (quotation omitted). We held that this notice of appeal was sufficient to appeal

both the new sentence and the denial of the conviction claims in the § 2255

motion. Id. at 894.

      We do not have jurisdiction to review Wilson’s claim as to his § 2255

motion. Wilson did not file a notice of appeal in his § 2255 case, which is

required under Federal Rule of Appellate Procedure 3. See Fed.R.App.P. 3(a)(1).

We do not construe the notice of appeal Wilson filed in this criminal case as a

                                           7
notice of appeal in his § 2255 case because it: (1) listed only his criminal case

number; (2) included the designation “CRIMINAL CASE” under the case number;

and (3) specified that it was an appeal from the judgment in the criminal case

without mentioning the order in the § 2255 case. Unlike the defendant in Futch,

Wilson did not specify that he was appealing the interim orders in his case as well

as the final criminal judgment. See Futch, 518 F.3d at 890. Therefore, we dismiss

Wilson’s claim as to his § 2255 motion for lack of jurisdiction.

                                           III.

      We generally review de novo the question of whether the government

breached a plea agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th

Cir. 2004). However, where a defendant fails to object to an alleged breach before

the district court, we review only for plain error. United States v. Romano, 314

F.3d 1279, 1281 (11th Cir. 2002). Plain error exists where (1) there is an error,

(2) that is plain, (3) that affected the defendant’s substantial rights, and (4) that

“seriously affect[ed] the fairness, integrity, or public reputation of the judicial

proceedings.” Id.

      A defendant may appeal his sentence based on an alleged plea agreement

breach even if the plea agreement contains a sentence appeal waiver. See

Copeland, 381 F.3d at 1105. The first step in determining whether the

                                            8
government breached a plea agreement is to “determine the scope of the

government’s promises.” Id. In so doing, we applied an objective standard to

determine “whether the government’s actions [were] inconsistent with what the

defendant reasonably understood when he” pleaded guilty. Id. (quotation

omitted).

      Because Wilson did not object that the government breached the plea

agreement before the district court, the claim is subject to plain-error review. See

Romano, 314 F.3d at 1281. Wilson fails to meet the first prong of the plain error

test in that there was no error because the government did not breach the plea

agreement. The plea agreement unambiguously stated that Wilson’s minimum

sentence was ten years and that his maximum sentence was life imprisonment.

Nowhere does the agreement state that the government must explain how it

determined that these were Wilson’s minimum and maximum sentences.

Accordingly, the government did not breach the agreement when it failed to offer

such an explanation in the plea agreement or during the plea colloquy. Therefore,

we affirm as to Wilson’s argument that the government breached the plea

agreement.

                                         IV.




                                          9
      We review the validity of a sentence appeal waiver de novo. United States

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

be enforced if it was made knowingly and voluntarily. United States v. Bushert,

997 F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was made

knowingly and voluntarily, the government must show either that: (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.” Id. In Johnson, we discussed “the Eighth

Circuit’s application of the ‘miscarriage of justice’ exception,” but did not purport

to adopt such an exception for our Circuit. 541 F.3d at 1069 n.5.

      A party abandons an issue not raised in its initial brief. United States v.

Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). To raise an issue on appeal,

the appellant should “plainly and prominently” indicate that the issue is being

raised. Id. The appellant in Jernigan abandoned an issue where he made only

four passing references to the issue. Id.

      Wilson knowingly and voluntarily waived his right to appeal his sentence.

During the plea colloquy, the magistrate specifically questioned Wilson about the

sentence appeal waiver, reviewed the terms of the waiver with Wilson, explained

its exceptions, and explained that Wilson could only appeal his sentence if one of

                                            10
the three exceptions was met. The magistrate further explained that Wilson could

not appeal the court’s calculation of his guideline range, nor could Wilson argue

that his lawyer was ineffective with respect to the Sentencing Guidelines. Wilson

testified that he understood the appeal waiver, its exceptions, and the fact that he

could not appeal the court’s calculation of his guideline range or argue that his

attorney was ineffective with respect to the Sentencing Guidelines. He also

testified that he had no questions about the appeal waiver and that he agreed to the

appeal waiver freely and voluntarily. Finally, Wilson testified that he and his

lawyer had discussed every page of the plea agreement and that he understood

every page of the agreement. Therefore, the sentence appeal waiver was made

knowingly and voluntarily. See Bushert, 997 F.2d at 1351.

      Wilson makes three additional arguments regarding the validity of his

appeal waiver, and these arguments are meritless. First, he asserts that he did not

intelligently waive his right to appeal because he did not understand why his

minimum sentence was ten years rather than five years. Wilson has not explained

how his lack of understanding as to how his minimum sentence was determined

relates to his decision to agree to waive his right to appeal. Second, Wilson argues

that the district court’s order granting his § 2255 motion supports his argument

that he did not intelligently waive his right to appeal. Wilson is incorrect because

                                          11
that order merely allowed Wilson to file an out-of-time appeal without addressing

whether Wilson had intelligently waived his right to appeal. Third, Wilson argues

that enforcing the appeal waiver would be a miscarriage of justice because his

sentence is longer than he thought it would be based on the plea agreement. This

argument is belied by the record because Wilson expressly agreed in the plea

agreement and during the plea colloquy that his minimum sentence was ten years.

Furthermore, even if we had adopted the “miscarriage of justice” exception to

appeal waivers, Wilson has not shown that a miscarriage of justice would result in

this case where he was informed of the ten-year statutory minimum sentence in

both his plea agreement and during his plea colloquy and where he knowingly and

voluntarily waived his right to appeal his sentence.

      The exceptions to Wilson’s appeal waiver do not apply because his

120-month sentence does not exceed his 120-month guideline range as determined

by the court or the statutory maximum sentence of life imprisonment. Moreover,

Wilson has waived any argument that his sentence violated the Eighth Amendment

because, in his counseled brief, he makes only a single passing reference to the

Eighth Amendment. See Jernigan, 341 F.3d at 1283 n.8. Therefore, Wilson

knowingly and voluntarily waived his right to appeal his sentence, and we dismiss

the appeal of his sentence.

                                         12
                                          V.

      In United States v. Howle, 166 F.3d 1166 (11th Cir. 1999), the defendant

knowingly and voluntarily waived his right to appeal, but the district court

nonetheless “strongly encouraged him to appeal his sentence.” Id. at 1168. This

encouragement, however, did not affect the terms of the plea agreement. Id. Even

if the court was trying to modify the plea agreement, the attempt was invalid. Id.

at 1169. Therefore, we honored the plea agreement and dismissed the appeal

without addressing its merits. Id.

      The district court did not abrogate Wilson’s appeal waiver. As discussed

above, Wilson’s appeal waiver was knowing and voluntary. Therefore, even if the

district court’s order allowing him to file an out-of-time appeal was an attempt to

abrogate the appeal waiver, such an attempt was invalid. See Howle, 166 F.3d at

1169. Therefore, we will honor the plea agreement and dismiss Wilson’s appeal

of his sentencing issues.

                                         VI.

      A defendant may not attack the effectiveness of his sentencing counsel

where there is a valid sentence appeal waiver in effect that prohibits a direct or

collateral challenge on any ground. Williams v. United States, 396 F.3d 1340,

1342 (11th Cir. 2005). In Williams, the defendant waived his right to appeal his

                                          13
sentence “on any ground” on direct appeal or collateral review. Id. at 1341

(quotation omitted). During the plea colloquy, the district court explained to the

defendant in Williams “that he was waiving his right to challenge his sentence

‘directly or collaterally.’” Id. In enforcing the appeal waiver in that case, we

explained that allowing a defendant to “recast[] a challenge to his sentence as a

claim of ineffective assistance” would make the appeal waiver meaningless. Id. at

1342.

        As discussed above, Wilson knowingly and voluntarily waived his right to

appeal his sentence. Wilson was specifically advised that he was waiving his right

to appeal errors, including ineffective assistance of counsel, related to the

Sentencing Guidelines. He testified that he understood that he was waiving this

right. Accordingly, we dismiss his appeal as to his arguments that his sentencing

counsel was ineffective for failing to make an argument related to the Sentencing

Guidelines and that his sentence was procedurally unreasonable. Wilson also

waived the right to argue that counsel was ineffective for failing to object to his

§ 851 sentence enhancement. Like the defendant in Williams, Wilson’s plea

agreement specified that he could not appeal or seek collateral review of his

sentence “on any ground.” See Williams, 396 F.3d at 1341. We thus enforce the

appeal waiver and dismiss this claim because Wilson was specifically questioned

                                          14
on his appeal waiver; he knowingly and voluntarily waived the right to appeal his

sentence, including ineffective assistance claims; and to consider the merits of this

claim would allow Wilson to circumvent his appeal waiver as to the application of

the § 851 sentence enhancement. See id. at 1342.

      For the foregoing reasons, we dismiss Wilson’s claim as to his § 2255 case;

affirm as to the breach of the plea agreement argument; and dismiss Wilson’s

claims regarding the abrogation of his appeal waiver, ineffectiveness of sentencing

counsel, and procedural reasonableness of his sentence.

      AFFIRMED IN PART, DISMISSED IN PART.




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