           Case: 19-12166    Date Filed: 11/15/2019   Page: 1 of 5


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12166
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:17-cr-00127-CG-MU-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

                                  versus

JAMES DERRICK ROBERTSON,

                                              Defendant - Appellant.

                      ________________________

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

                            (November 15, 2019)

Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
              Case: 19-12166     Date Filed: 11/15/2019    Page: 2 of 5




      The United States moves to dismiss James Derrick Robertson’s appeal of his

sentence based on the appeal waiver in his plea agreement. After careful

consideration, we conclude the waiver is enforceable and forecloses Robertson’s

appeal. We therefore grant the government’s motion.

                                          I.

      Pursuant to a written plea agreement, Robertson pled guilty to one count of

receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b) and

one count of obstructing justice in violation of 18 U.S.C. § 1519.

      Robertson’s plea agreement included an appeal waiver. It said:

      As part of the bargained-for exchange represented in this plea
      agreement, and subject to the limited exceptions below, the defendant
      knowingly and voluntarily waives the right to file any direct appeal or
      any collateral attack, including a motion to vacate, set aside, or correct
      sentence under 28 U.S.C. § 2255. Accordingly, the defendant will not
      challenge his guilty plea, conviction, or sentence in any district court
      or appellate court proceedings.

The plea agreement listed several exceptions to this waiver. First, Robertson could

appeal “any sentence imposed in excess of the statutory maximum” and “any

sentence which constitutes an upward departure or variance from the advisory

guideline range.” Second, Robertson “reserve[d] the right to claim ineffective

assistance of counsel in a direct appeal or § 2255 motion.” Last, the plea




                                          2
              Case: 19-12166     Date Filed: 11/15/2019   Page: 3 of 5


agreement releases Robertson from the appeal waiver if the government files a

notice of appeal.

      During Robertson’s change of plea hearing, the court confirmed Robertson

received the plea agreement, reviewed it with his attorneys, and signed it. The

court also asked Robertson if he understood that he was waiving his right to appeal

“in all but [] three circumstances,” which were: (1) if the sentence was “in excess

of the statutory maximum”; (2) if the sentence “constitute[d] an upward departure

or variance from the sentencing guideline range”; or (3) to raise an ineffective

assistance of counsel claim. The court did not explain that the plea agreement also

permits Robertson to appeal if the government files a notice of appeal. The court

ultimately accepted Robertson’s guilty plea, finding it was both “knowing and

voluntary.”

      In its presentence investigation report (“PSR”), the probation office

determined that Robertson had an advisory guideline range of 188 to 235 months.

In calculating Robertson’s guideline range the probation office applied several

sentencing enhancements under United States Sentencing Guidelines § 2G2.2(b).

Robertson objected that the separate enhancements imposed under U.S.S.G.

§ 2G2.2(b)(2) and (4) would constitute impermissible double counting. At

sentencing, the court overruled Robertson’s objection and sentenced him to 235-

months imprisonment. Robertson appealed, arguing only that the district court


                                          3
               Case: 19-12166    Date Filed: 11/15/2019    Page: 4 of 5


engaged in impermissible double counting. The government moved to dismiss

Robertson’s appeal, asking us to enforce the appeal waiver. Robertson did not

respond to the government’s motion.

                                         II.

      Robertson’s plea agreement forecloses this appeal. Robertson expressly

“waive[d] the right to file any direct appeal,” with only exceptions that do not

apply here. Robertson’s 235-month sentence does not exceed the 20-year statutory

maximum for either count, see 18 U.S.C. §§ 1519, 2252A(b)(1); his appeal does

not raise an ineffective assistance of counsel claim; and the government has not

filed a notice of appeal.

      And while Robertson claims the district court inappropriately calculated his

guideline range by double counting enhancements, he does not argue the court

departed from its calculated guideline range. Cf. United States v. Grinard-Henry,

399 F.3d 1294, 1296–97 (11th Cir. 2005) (per curiam) (holding that an appeal

waiver barred even “difficult or debatable legal issues,” such as a claim that the

guidelines were “unconstitutionally applied”). Indeed, the plea agreement

expressly warned that “no one can predict with certainty what the sentencing range

will be in this case until after [the] pre-sentence investigation has been concluded

and the Court has ruled on the result of that investigation.” In accepting these

terms, Robertson acknowledged he might disagree with the district court’s


                                          4
              Case: 19-12166     Date Filed: 11/15/2019    Page: 5 of 5


calculation of his guidelines range, and that if he did, he would be unable to

challenge it on appeal.

      Having determined Robertson’s claim is barred by the appeal waiver, we

must decide whether the waiver is enforceable. We review de novo the validity of

an appeal waiver, United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008),

and we enforce it only if the government establishes that the waiver was made

knowingly and voluntarily, United States v. Bushert, 997 F.2d 1343, 1350–51

(11th Cir. 1993). The government has met its burden here by showing that “the

district court specifically questioned the defendant concerning the sentence appeal

waiver during the [plea] colloquy.” Id. at 1351.

      The district court’s failure to question Robertson about one of the four

possible exceptions to the waiver does not alter this result, as the touchstone for

assessing a court’s explanation of a waiver is whether it “clearly convey[ed] to [the

defendant] that he was giving up his right to appeal under most circumstances.”

Bushert, 997 F.2d at 1352–53. The district court’s thorough questioning at the plea

colloquy, in which it explained the effect of the appeal waiver and noted three of

its four exceptions, accomplished as much. We therefore grant the government’s

motion.

      APPEAL DISMISSED.




                                          5
