              Case: 17-13257     Date Filed: 11/21/2017    Page: 1 of 3


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-13257
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 8:15-cr-00211-MSS-TGW-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

DARYON B. HOWARD,
a.k.a. Daryon B. Jones,

                                                               Defendant-Appellant.
                           ________________________

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

                                (November 21, 2017)

Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:

      Daryon Howard appeals from his 137-month sentence, imposed after he pled

guilty to one count of possession of cocaine base with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and one count of possession of a
               Case: 17-13257     Date Filed: 11/21/2017   Page: 2 of 3


firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A). Howard argues his attorney rendered ineffective assistance at

sentencing by failing to seek a downward departure based on eleven of twelve

factors listed in a psychologist’s report.

      The government filed a motion to dismiss Howard’s appeal based on the

sentence-appeal waiver in his plea agreement and his plea colloquy. The

government argues that Howard knowingly and voluntarily waived his right to

appeal his sentence and that the sentence-appeal waiver forecloses an ineffective-

assistance claim on direct appeal. The government also argues in the alternative

that if Howard’s appeal waiver does not foreclose his challenge, the record is

insufficiently developed at this stage, and we should thus decline to consider his

claim on direct appeal.

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

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Such waivers are valid

and enforceable if they are made knowingly and voluntarily. United States v.

Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). The government can demonstrate

a waiver was made knowingly and voluntarily by showing 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.

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       Here, Howard does not argue that his sentence-appeal waiver was invalid

and thus should not be enforced. Rather, he argues that it does not foreclose a

“collateral challenge[],” such as a claim of ineffective assistance, on direct appeal.

The plea agreement stated he “expressly waive[d] the right to appeal [his] sentence

on any ground,” except for three enumerated grounds in the plea agreement. A

challenge based on ineffective assistance of counsel at sentencing was not included

in the list of exceptions. The plain language of the waiver therefore bars Howard

from challenging his sentence based on a claim of ineffective assistance on direct

appeal.1 And because Howard does not argue that his waiver is invalid, we must

enforce it. See Bushert, 997 F.2d at 1351.

       The government’s motion to dismiss is granted.




       1
          As the government’s alternative argument appears to recognize, claims of ineffective
assistance of counsel are not generally heard on direct appeal in any event. Thomas v. United
States, 572 F.3d 1300, 1305–06 (11th Cir. 2009). We do not therefore address whether the
sentence-appeal waiver also prohibits Howard from raising his ineffective-assistance claim in a
collateral proceeding, such as 28 U.S.C. § 2255.
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