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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15759
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:15-cr-00508-RAL-TGW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ROBERT LAWRENCE,

                                                          Defendant-Appellant.

                      ________________________

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

                            (December 21, 2018)

Before WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Robert Lawrence appeals his 180-month sentence, which the district court

imposed after accepting a plea agreement that included an appeal waiver. Because

we conclude Lawrence knowingly and voluntarily waived his right to appeal, we

dismiss.

                                         I.

      Lawrence was charged with being a felon in possession of a firearm, 18

U.S.C. § 922(g)(1), possessing marijuana with intent to distribute, 21 U.S.C.

§ 841(a)(1), and carrying a firearm in furtherance of a drug-trafficking crime, 18

U.S.C. § 924(c)(1)(A)(i). Lawrence agreed to plead guilty to the first two of those

charges. As part of the written plea agreement, Lawrence expressly waived his

right to appeal unless: (1) the court imposed a sentence above the Guideline range;

(2) the court imposed a sentence above the statutory maximum; (3) the sentence

violated the Eighth Amendment; or (4) the government appealed the sentence

imposed. At the change-of-plea hearing, the district court explained these four

exceptions and attempted to ensure that Lawrence understood he was otherwise

unable to appeal. The court noted, and Lawrence acknowledged, that he had

signed the end of the agreement and initialed the first seventeen pages. Lawrence

further acknowledged that he had discussed every provision of the plea agreement

in detail with his attorney and that he understood them all. Nevertheless, the

district court undertook to explain at length some of the sentencing provisions and

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the waiver of appeal. Twice during the hearing, Lawrence assured the court, upon

its questioning, that he would immediately stop the proceedings if he was at any

time confused.

      Lawrence also explained, however, that he suffered from schizophrenia. He

had been prescribed Risperdal, which normally he took at night and had taken the

night before the hearing. He affirmed that his mind was clear and he was thinking

appropriately. A psychologist had evaluated Lawrence and concluded he was

competent to proceed.

      After Lawrence acknowledged that he was pleading guilty freely and

voluntarily, that he accepted every provision of the plea agreement, including the

waiver of appeal, and that he was satisfied with his counsel’s representation, the

court accepted his plea. There were no objections to the presentence report. The

court sentenced Lawrence to the mandatory minimum of 180 months.

      The district court entered judgment on December 12, 2016. On December 6,

2017, Lawrence moved pro se under 28 U.S.C. § 2255 to vacate his sentence or

reinstate his right to appeal. He alleged, in part, ineffective assistance of counsel

for failure to appeal. On December 19, 2017, the district court granted the motion,

“but only to the extent that Plaintiff will be afforded an out-of-time appeal pursued

by appointed counsel.” The court followed the procedure we laid out in United

States v. Phillips, 225 F.3d 1198 (11th Cir. 2000), vacating the underlying criminal

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judgment, reimposing the same sentence, and advising Lawrence of his right to

appeal and how long he had to appeal. See id. at 1201. The civil habeas case was

terminated in Lawrence’s favor, and the criminal judgment was amended. This

timely direct appeal of the amended criminal judgment followed.

      On appeal, Lawrence first argues that the appeal waiver in his plea

agreement was not made knowingly or voluntarily. Second, he contends that his

sentence is unconstitutional. Third, he asks that we remand his case and direct the

district court to reinstate his § 2255 motion.

                                          II.

      “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. See United

States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To establish that the

waiver was made knowingly and voluntarily, the “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.

      The record demonstrates that Lawrence’s appeal waiver was made

knowingly and voluntarily. The district court specifically questioned Lawrence

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about the plea waiver during his plea colloquy, focusing on the precise terms of

Lawrence’s waiver. After an extended discussion, the court explained the waiver

in clear terms: “The bottom line is this, Mr. Lawrence. Unless one [of the] four

exceptions applies, you’ll have to live with whatever sentence I give you without

the benefit of a direct appeal to the Eleventh Circuit Court of Appeals. Do you

understand that?” Lawrence responded, “Yes, sir.” 1 We are satisfied that

Lawrence’s waiver was knowing and voluntary.

       Lawrence also argues he received ineffective assistance of counsel. “We

will not generally consider claims of ineffective assistance of counsel raised on

direct appeal where the district court did not entertain the claim nor develop a

factual record.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010)

(quoting United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)).

       The district court developed no factual record on the ineffective-assistance

issue. We decline to consider Lawrence’s ineffective-assistance argument without

the district court having first considered it. As we explain below, Lawrence faces



       1
          Lawrence devotes much of his initial brief’s statement of facts to insinuating he was
mentally incompetent. He contrasts his behavior at the change-of-plea hearing with his earlier
“active, and sometimes aggressive, stance during other hearings,” contending that the difference
“suggests that [he] was very subdued and may have been experiencing the effects of the
psychotropic drugs.” Setting aside the purely speculative nature of this suggestion, we note that
Lawrence does not advance the argument in the argument section of his brief. We deem issues
waived when they are raised only in the introductory sections of the initial brief and are not
developed in the arguments on the merits. See Kelliher v. Veneman, 313 F.3d 1270, 1274 n.3
(11th Cir. 2002).
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no bar to filing a new § 2255 motion, which is the preferred vehicle by which to

argue deficient performance of counsel. See id. at 1328–29.

                                         III.

      In his attempt to appeal his sentence directly, Lawrence maintains his

sentence was imposed under an unconstitutional statutory provision.

      Whether we can consider Lawrence’s argument turns on the appeal waiver

in his plea agreement. “A plea agreement is, in essence, a contract between the

Government and a criminal defendant.” United States v. Howle, 166 F.3d 1166,

1168 (11th Cir. 1999). We generally cannot “write into the contract an exception

that the parties did not agree to.” Johnson, 541 F.3d at 1069. Accordingly, a

sufficiently comprehensive “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). This reasoning extends

even to unpreserved claims of certain constitutional violations. See id. at 1296–97

(rejecting claim that sentence violated Fifth and Sixth Amendments when those

constitutional claims were not exceptions in the plea agreement). Nevertheless,

“an effective waiver is not an absolute bar to appellate review.” Johnson, 541 F.3d

at 1068. We have recognized that a defendant does not waive his right to appellate

review when sentenced “based on a constitutionally impermissible factor such as

race” or if there are “extreme circumstances—for instance, if the district court had

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sentenced [the defendant] to a public flogging . . . .” Id. (quoting Bushert, 997

F.2d at 1350 n.18, and Howle, 166 F.3d at 1169 n.5).

      Lawrence does not argue, and we do not see, that any of the four exceptions

in his appeal waiver applies here. Nor does Lawrence allege that he was sentenced

Lawrence based on constitutionally impermissible factors or that there are any

“extreme circumstances.” Accordingly, having concluded that Lawrence’s appeal

waiver is valid, we cannot consider Lawrence’s constitutional challenge.

                                          IV.

      Acknowledging that he should first argue the ineffective-assistance issue in

the district court, Lawrence asks that we remand his case with instructions to

reinstate his § 2255 motion.

      Lawrence asks for relief we cannot grant. He prevailed on his § 2255

motion to a limited extent: the district court allowed him to file a late direct

criminal appeal. Thus, this appeal comes from the criminal action against

Lawrence. We lack jurisdiction to reinstate his separate, unappealed civil action.

      But all hope is not lost. A new § 2255 motion raising the issues the district

court declined to reach would not be barred as a “second or successive motion”

under 28 U.S.C. § 2255(h). See McIver v. United States, 307 F.3d 1327, 1330–32

(11th Cir. 2002) (holding that a “successful motion to file an out-of-time notice of

appeal [] does not render subsequent collateral proceedings ‘second or

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successive’”). Should Lawrence elect to pursue further collateral proceedings, he

faces no § 2255(h) hurdle.

      APPEAL DISMISSED.




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