              Case: 19-14322    Date Filed: 05/19/2020   Page: 1 of 2



                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-14322
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 3:18-cr-00223-HES-MCR-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

BRIAN DAVIS,

                                                             Defendant-Appellant.
                          ________________________

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

                                 (May 19, 2020)

Before WILSON, LUCK and MARCUS, Circuit Judges.

PER CURIAM:

      The Government’s motion to dismiss this appeal pursuant to the appeal

waiver in Appellant’s plea agreement is GRANTED. As the record reflects, Davis

knowingly and voluntarily waived his right to appeal his sentence. During the plea
              Case: 19-14322     Date Filed: 05/19/2020   Page: 2 of 2



colloquy, the magistrate judge specifically questioned Davis about the sentence

appeal waiver, summarizing the language of the waiver and explaining its terms.

Further, the magistrate judge asked Davis whether he had voluntarily agreed to the

waiver and had any questions about the plea agreement, in addition to confirming

with Davis that he understood the terms of the agreement and had read and

discussed them with his counsel. Thus, the record establishes that Davis

knowingly and voluntarily agreed to the sentence appeal waiver. See United States

v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993) (holding that a sentence

appeal waiver will be enforced if it was made knowingly and voluntarily).

      In addition, none of the exceptions to Davis’s appeal waiver apply. First, the

72-month total sentence the district court imposed did not exceed the statutory

maximum term of imprisonment or the guideline range and Davis does not claim

that the sentence violates the Eighth Amendment. Indeed, a within-guideline

sentence does not generally violate the Eighth Amendment and the district court

imposed a sentence below the guideline range. United States v. Moriarty, 429 F.3d

1012, 1024 (11th Cir. 2005). Moreover, the government has not appealed his

sentence, so Davis was not released from the appeal waiver. Thus, none of the

exceptions to Davis’s appeal waiver apply, and we grant the government’s motion

to dismiss Davis’s appeal pursuant to the sentence appeal waiver.

      DISMISSED.

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