           Case: 12-10181   Date Filed: 04/05/2013   Page: 1 of 5




                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 12-10181; 12-11083
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:10-cr-00240-TCB-GGB-1



UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

versus

KEITH ANTHONY JACKSON,

                     Defendant - Appellant.

                      ________________________

               Appeals from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (April 5, 2013)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
                Case: 12-10181      Date Filed: 04/05/2013      Page: 2 of 5


       Keith Jackson appeals his 61-month sentence after pleading guilty to wire

fraud, in violation of 18 U.S.C. § 1343, and aggravated identity theft, in violation

of 18 U.S.C. § 1028A(a)(1). On appeal, Jackson argues that the government

breached the plea agreement by arguing for a three-level victim enhancement. He

also argues that his presentence investigation report (PSI) should be amended

because it contains inaccurate information. Finally, Jackson appeals the district

court’s denial of his pro se post-sentencing motion alleging bias on the part of the

district judge. 1

       The government responded to Jackson’s appeal by filing a motion to dismiss

based on an appeal waiver that was included in Jackson’s plea agreement. The

government does not oppose Jackson’s request to amend the PSI. For the reasons

that follow, we affirm the district court’s sentence, but remand to correct the PSI’s

inaccuracies.

       “We review the validity of a sentence appeal waiver de novo.” United

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Where a defendant fails

to raise an alleged breach of a plea agreement before the district court, we review

the alleged breach for plain error only. United States v. Romano, 314 F.3d 1279,

1281 (11th Cir. 2002). Plain error occurs if “(1) error occurred, and (2) the error is



       1
         The appeal from the denial of Jackson’s motion alleging bias is Case No. 12-11803 and
has been consolidated with Jackson’s appeal from his sentence, Case No. 12-10181.
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plain, (3) affects the defendant’s substantial rights, and (4) seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.” Id. at 1281.

      A sentence appeal waiver will be enforced if it was made knowingly and

voluntarily. 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 either show that district court specifically questioned the defendant about the

waiver during the plea colloquy, or that the record makes clear that the defendant

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

      At a hearing in December 2012, Jackson expressly agreed to modify his plea

agreement to allow the government to argue in favor of a victim enhancement in

exchange for his ability to argue for a downward departure. This agreement, along

with Jackson’s understanding of his appeal waiver, is memorialized in the record.

The district court applied the three-level victim enhancement in addition to the

Guidelines calculations proposed in the plea agreement and an additional one-level

reduction for acceptance of his responsibility, yielding a total offense level of 13.

Jackson’s Guidelines range was 30 to 37 months for wire fraud, to run

consecutively with a mandatory 2-year sentence for aggravated identity theft. The

district court imposed a sentence at the high end of the Guidelines range, for a total

of 61 months’ imprisonment. The district court also stated on the record that even




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if the victim enhancement had not applied, Jackson’s sentence would still have

been 61 months.

      Jackson’s contention that the government breached the plea agreement is not

supported by the record. The record demonstrates that he knowingly and

voluntarily waived his right to appeal his sentence, and that no exception to this

general rule applies. See Bushert, 997 F.2d at 1351. Moreover, the transcript from

the sentencing hearing shows that Jackson wanted to modify the plea agreement to

allow his attorney to argue for a downward departure. In exchange for this, he

allowed the government to argue for the victim enhancement. He must live with

the consequences of that decision.

      Jackson’s allegation that the district court was biased and should have been

recused is similarly without merit. On appeal, the test for determining whether a

judge should recuse himself is whether an objective, disinterested, lay observer

fully informed of the facts underlying the grounds on which recusal was sought

would have significant doubts about the judge’s impartiality. See United States v.

Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989). Although Jackson alleges that

the district judge made inappropriate comments about him, there is nothing in the

record to support this assertion. In short, Jackson presents no evidence calling into

doubt the district judge’s impartiality. The district court did not err in denying

Jackson’s motion for recusal.


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      We do find merit, however, in Jackson’s argument that his PSI should be

amended. As noted earlier, the United States does not oppose a modification to

Jackson’s PSI. The item about which Jackson complains had no impact on

Jackson’s Guidelines calculation. Therefore, we will remand to the district court

for the limited purpose of amending the PSI.

      We grant the government’s motion to dismiss Jackson’s appeal of his

sentence. We also affirm the district court’s denial of Jackson’s motion for

recusal. We remand for the limited purpose of amending Jackson’s PSI.

      AFFIRMED.




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