              Case: 19-13289    Date Filed: 03/12/2020   Page: 1 of 9



                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-13289
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket Number 1:18-cr-00252-CG-N-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

BRANDON DARNELL MOORE,

                                                             Defendant-Appellant.

                         __________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                         _________________________

                                (March 12, 2020)

Before WILSON, ROSENBAUM and HULL, Circuit Judges.

PER CURIAM:

      After pleading guilty, Brandon Moore appeals his 151-month sentence for

conspiracy to distribute and possess with the intent to distribute methamphetamine.
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After review, we grant the government’s motion to dismiss Moore’s appeal—in

which he challenges the procedural and substantive reasonableness of his

sentence—based on the valid and enforceable sentence-appeal waiver provision in

his plea agreement.

                                I. BACKGROUND

A.    Indictment and Plea Agreement

      In August 2018, a grand jury indicted Moore and his codefendant for one

count of conspiracy to distribute and possess with the intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, two counts

of possession with intent to distribute methamphetamine, in violation of

§ 841(a)(1) and (b)(1)(A), and one count of possession with intent to distribute

marijuana, in violation of § 841(a)(1).

      Moore entered into a written plea agreement with the government, in which

he agreed to plead guilty to the drug conspiracy count and the government agreed

to dismiss the remaining three drug possession charges and recommend a sentence

at the low end of the advisory guidelines range. As a part of his plea agreement,

Moore waived, of relevance, his right to directly appeal his sentence, unless:

(1) his sentence exceeded the statutory maximum; (2) his sentence constituted an

upward departure or variance from the advisory guidelines range; or (3) he had a

claim of ineffective assistance of counsel. Moore signed the plea agreement,

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acknowledging that he fully understood his rights and the terms of the agreement

and voluntarily agreed to those terms after carefully reviewing them with his

attorney. The agreement also included a factual proffer, which Moore signed,

acknowledging that it was true and accurate and demonstrated his guilt beyond a

reasonable doubt.

B.    Plea Hearing

      At the change-of-plea hearing, Moore was sworn. The district court verified

that Moore could understand the proceedings, had discussed the charges in the

indictment with his counsel, and understood the charges against him. The district

court confirmed that Moore had an opportunity to read and discuss the plea

agreement and the factual basis with his attorney, signed both documents, and

understood the plea agreement’s terms. Moore attested that no one had made any

promises or assurances to him that were not in the plea agreement, that no one had

threatened or forced him to plead guilty, and that he was pleading guilty of his own

free will because he was guilty.

      The district court verified that Moore understood the trial rights he was

giving up by pleading guilty and the consequences of his guilty plea, including that

he could be sentenced up to life in prison. Moore acknowledged that he

understood that the district court would use the Sentencing Guidelines, determine

his advisory guidelines range, and examine the statutory sentencing factors, but

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also had the authority to depart from the advisory guidelines range. The district

court explained that Moore had the right to appeal his sentence but that his plea

agreement contained a limited waiver of his right to appeal. The district court

explained that Moore had waived his right to directly appeal his sentence unless:

(1) the sentence exceeded the statutory maximum; (2) the sentence constituted an

upward departure or variance from the advisory guidelines range; or (3) he had an

ineffective assistance of counsel claim. Moore replied that he understood. The

district court set forth the elements of the drug conspiracy count and Moore stated

that he understood what the government would have to prove to convict him.

Moore confirmed his understanding that, by signing the factual basis, he agreed

that the government could prove those facts in support of his guilty plea.

      Moore then pled guilty to the drug conspiracy count. The district court

found that Moore was “fully competent and capable of entering an informed plea,”

that he was “aware of the nature of the charges and the consequences of the plea,”

and that the guilty plea was “a knowing and voluntary plea supported by an

independent basis in fact containing each of the essential elements of the offense.”

Thus, the district court accepted the plea and adjudged Moore guilty of the drug

conspiracy count.

C.    Sentencing




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      Moore’s presentence report (“PSR”) assigned him a total offense level of 33

and a criminal history category of II, yielding an advisory guidelines range of 151

to 188 months’ imprisonment (approximately 12.5 to 15.5 years). The statutory

mandatory minimum term of imprisonment for Moore’s drug conspiracy

conviction under §§ 841(b)(1)(A) and 846 is 10 years and the statutory maximum

term is life imprisonment. Moore filed one objection to the PSR, which is not

relevant to this appeal.

      At Moore’s sentencing hearing, the district court adopted the guidelines

calculations and heard the parties’ arguments for a reasonable sentence. Moore

argued for a downward variance to the 10-year statutory mandatory minimum,

whereas the government recommended a sentence at the low end of the advisory

guidelines range. The district court found that—upon considering the Sentencing

Guidelines, the statutory purposes of sentencing, the parties’ arguments, and the

facts of this case—a within-guidelines-range sentence was appropriate and

reasonable and stated that it intended to sentence Moore to the low end of the

advisory guidelines range. The district court sentenced Moore to 151 months’

imprisonment, at the very bottom of the 151-to-188-month advisory guidelines

range. The district court confirmed that there were no objections to the sentence,

reminded Moore that his right to appeal his sentence was limited by the terms of




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his appeal waiver, and dismissed the remaining three drug possession counts. The

judgment was entered on June 10, 2019.

       Despite his appeal waiver, in August 2019, Moore filed a pro se notice of

appeal. 1

                                      II. DISCUSSION

       For the first time, Moore argues that his 151-month sentence is procedurally

and substantively unreasonable because the district court did not fully consider the

18 U.S.C. § 3553(a) factors in imposing his sentence. For the reasons stated

below, we agree with the government that Moore’s sentencing claim is barred by

his valid sentence-appeal waiver in his plea agreement.

       This Court reviews de novo the validity of a sentence appeal waiver. United

States v. DiFalco, 837 F.3d 1207, 1215 (11th Cir. 2016). We will enforce a

sentence-appeal waiver so long as it was made knowingly and voluntarily. United

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A guilty plea is entered


       1
          Moore’s August 2019 pro se notice of appeal was filed more than 14 days after the
district court’s June 10 entry of judgment. While, along with his notice of appeal, Moore also
filed a motion for an extension of time to file his notice of appeal, the district court denied the
motion because it was filed more than 30 days after the 14-day deadline had expired. Thus,
Moore’s notice of appeal is untimely under Federal Rule of Appellate Procedure 4(b)(1)(A)(i)
and 4(b)(4).
         However, because Rule 4’s timeliness requirements are not jurisdictional, we typically do
not apply those requirements in direct criminal appeals unless the issue is raised by the
government. See United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009). Here, in
addition to requesting that we enforce the sentence-appeal waiver, the government moves
alternatively to dismiss Moore’s appeal as untimely. Because we conclude that Moore’s appeal
is due to be dismissed based on his valid sentence-appeal waiver, we need not reach the
timeliness issue.
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into knowingly and voluntarily when it satisfies the following “three core

concerns”: “(1) the guilty plea must be free from coercion; (2) the defendant must

understand the nature of the charges; and (3) the defendant must know and

understand the consequences of his guilty plea.” United States v. Symington, 781

F.3d 1308, 1314 (11th Cir. 2015) (quotation marks omitted). Further, a sentence-

appeal waiver is valid if the government shows that: (1) the district court

specifically questioned the defendant about the waiver during the change-of-plea

colloquy; or (2) the record makes clear that the defendant otherwise understood the

full significance of the waiver. Johnson, 541 F.3d at 1066. A valid appeal waiver

bars an appeal raising difficult or debatable legal issues or even blatant error.

United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005).

      Here, the sentence-appeal waiver provision in Moore’s plea agreement is

valid and enforceable. In the plea agreement, Moore acknowledged that he

understood that he had the right to appeal his sentence and that he waived that right

unless: (1) his sentence exceeded the statutory maximum; (2) his sentence

constituted an upward departure or a variance from the advisory guidelines range;

or (3) he had a claim of ineffective assistance of counsel. The sentence-appeal

waiver provision also contained an acknowledgement that Moore had carefully

reviewed its terms with his attorney.




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      During the plea colloquy at Moore’s change-of-plea hearing, the district

court specifically informed Moore of his right to appeal, the sentence-appeal

waiver provision in his plea agreement, and the three exceptions to the waiver.

Moore responded that he understood. See United States v. Medlock, 12 F.3d 185,

187 (11th Cir. 1994) (explaining that this Court strongly presumes that the

defendant’s statements made during his plea colloquy are true). Moore also

confirmed that he had discussed the plea agreement containing the sentence-appeal

waiver with his attorney and that he had entered it knowingly and voluntarily. See

id. Thus, the record shows both that the district court specifically questioned

Moore about his waiver during the change-of-plea colloquy and that Moore

understood the full significance of his waiver. See Johnson, 541 F.3d at 1066.

      Moreover, none of the exceptions to Moore’s sentence-appeal waiver apply

here. First, Moore’s 151-month sentence for his drug conspiracy count of

conviction, in violation of §§ 841(b)(1)(A) and 846, does not exceed the applicable

statutory maximum term of life imprisonment. Second, Moore’s 151-month

sentence falls at the very bottom of his advisory guidelines range of 151 to 188

months and therefore does not constitute either an upward departure or variance

from the advisory guidelines range. Third, Moore solely challenges the procedural

and substantive reasonableness of his sentence and has not raised any claim of

ineffective assistance of counsel.

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      Because Moore’s sentence-appeal waiver provision is valid and enforceable

and none of the exceptions to the waiver apply, we dismiss Moore’s sentencing

appeal.

      MOTION GRANTED AND APPEAL DISMISSED.




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