            Case: 14-14106    Date Filed: 08/07/2015   Page: 1 of 10


                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                          Nos. 14-14106; 15-10175
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket Nos. 1:14-cv-00043-JRH-BKE,
                         1:10-cr-00203-JRH-BKE-1


ROBERT J. DEMELLO, JR.,

                                                            Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.

                         ________________________

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

                               (August 7, 2015)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Robert J. Demello, Jr., a federal prisoner proceeding pro se, appeals the

denial of his 28 U.S.C. § 2255 motion to vacate his sentence. In the underlying
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criminal proceedings, Demello pled guilty under a written plea agreement to one

count of bank fraud, in violation of 18 U.S.C. § 1344. In exchange for his plea, the

government agreed to dismiss the remaining counts in the indictment and to take

certain actions at sentencing.

      The plea agreement contains a “Limited Waiver of Appeal,” which provides

that Demello “voluntarily and expressly waives the right to appeal the conviction

and sentence and the right to collaterally attack the conviction and sentence in any

post-conviction proceeding, including a 28 U.S.C. § 2255 proceeding, on any

ground.” Limited exceptions to the waiver include if the sentence exceeds the

statutory maximum, if the sentence is higher than the advisory sentencing

guideline range as found by the district court, or if the government first appeals.

At the end of the plea agreement, Demello signed his name under an affirmance

stating he had read the plea agreement and understood what it meant and said.

      During the Rule 11, Fed. R. Crim. P., plea colloquy, the district judge

reviewed pertinent provisions of the plea agreement with Demello, including,

notably, his decision to waive his right to appeal his sentence except in limited

circumstances. The district judge explained the terms of the appeal waiver, stating

that Demello was agreeing to waive his rights to appeal his sentence, either

through a “direct appeal of [the] conviction and sentence,” or through an “indirect

appeal in a post-conviction proceeding.” Demello responded that he understood


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the waiver and had agreed to it. At the conclusion of the plea hearing, the judge

accepted Demello’s guilty plea and found that it was knowingly and voluntarily

made.

        A probation officer prepared a presentence investigation report (“PSR”)

finding that the total loss amount caused by Demello’s fraudulent acts was

$451,656.53. As a result, the probation officer added fourteen levels to the base

offense level under United States Sentencing Guidelines Manual (“U.S.S.G.”)

§ 2B1.1(b)(1)(H). The loss amount was based on what the victim, Southern Bank,

had reported as its losses. Demello filed numerous objections arguing that the

actual loss amount was much lower.

        At sentencing, the district court overruled Demello’s objections to the loss

amount. The court determined that Demello failed to provide evidence of the

correct loss amount that refuted Southern Bank’s averment of its actual loss. As a

result, the court applied the 14-level increase under § 2B1.1(b)(1)(H). The court

sentenced Demello to serve 58 months in prison, within the guideline range of 51

to 63 months’ imprisonment, and to pay $451,656.53 in restitution. 1 At the end of

the hearing, the court reminded Demello that he “ha[d] waived the right to attack

this sentence in any post conviction proceeding.”


        1
         Demello’s sentence does not fit within an exception to the waiver. Demello’s sentence
was not “higher than the advisory sentencing guideline range as found by the sentencing court,”
nor was the sentence above the statutory maximum.
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      Despite the waiver, Demello filed a direct appeal of his sentence. Demello’s

appointed counsel then filed a motion to withdraw along with a brief prepared

pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Demello

filed a response, arguing that the district court had improperly calculated the loss

amount and committed other errors at sentencing. After an independent review of

the entire record, a panel of this Court agreed with counsel’s assessment that there

were no arguable issues of merit in the appeal, granted counsel’s motion to

withdraw, and affirmed Demello’s conviction and sentence.          United States v.

Demello, 511 F. App’x 897 (11th Cir. 2013). The panel also denied Demello’s

petition for rehearing en banc, construed as a motion for reconsideration.

      Following this Court’s affirmance of his conviction and sentence, Demello

moved for post-conviction relief under 28 U.S.C. § 2255.         In his motion, he

asserted that the district court had erred in calculating the loss amount without

adequate proof and that his attorneys had provided ineffective assistance by failing

to obtain bank records establishing the loss. The government moved to dismiss the

§ 2255 motion based on the sentence-appeal waiver in the plea agreement. The

district court granted the government’s motion to dismiss and denied Demello’s

§ 2255 motion without an evidentiary hearing, concluding that Demello’s claims

were barred from review by a valid collateral-attack waiver in his plea agreement.

The court also denied a certificate of appealability (“COA”).


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       Demello appealed to this Court. We granted Demello a COA for one issue:

“Whether the district court erred in deciding, without an evidentiary hearing, that

Demello’s collateral attack waiver barred his claim of ineffective assistance of

counsel for failing to sufficiently investigate or object to the loss amount

calculation for sentencing guideline calculation purposes?”2

       We review a district court’s legal conclusions in a § 2255 proceeding de

novo and its findings of fact for clear error. McCarthy v. United States, 320 F.3d

1230, 1231-32 (11th Cir. 2003). The validity of a sentence-appeal waiver is

reviewed de novo. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir.

2008). We review the district court’s denial of an evidentiary hearing in a § 2255

proceeding for an abuse of discretion. Winthrop-Redin v. United States, 767 F.3d

1210, 1215 (11th Cir. 2014). Id. We liberally construe pro se filings, including

§ 2255 motions for post-conviction relief. Id.

       “A petitioner is entitled to an evidentiary hearing if he alleges facts that, if

true, would entitle him to relief.” Id. at 1216 (internal quotation marks omitted).

But a district court does not need to hold an evidentiary hearing if the allegations in


       2
          In his appellate brief, Demello also argues the following: (1) the court erroneously
found that his “revised” § 2255 motion, filed after the court entered judgment on his initial
§ 2255 motion, was a second or successive motion; (2) he received ineffective assistance of
counsel when his attorneys did not attempt to negotiate the appeal waiver or advise him of its
consequences; (3) the probation officer failed to conduct a proper presentence investigation;
and (4) the district court made no findings of fact to support its loss calculation. We do not
address the merits of these issues because our review is limited to the issue specified in the COA.
Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998).
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the § 2255 motion are “patently frivolous, based upon unsupported generalizations,

or affirmatively contradicted by the record.”        Id. (internal quotation marks

omitted).

      A sentence-appeal waiver is valid if the defendant made the waiver

knowingly and voluntarily. Williams v. United States, 396 F.3d 1340, 1341 (11th

Cir. 2005). To establish that the waiver was made knowingly and voluntarily, the

government must show either that (1) the district court specifically questioned the

defendant about the waiver during the plea colloquy, or (2) the record makes it

manifestly clear that the defendant otherwise understood the full significance of the

waiver. Id.; see also United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir.

1993).      When a valid sentence-appeal waiver is entered into knowingly and

voluntarily and contains express language waiving the right to collateral review, it

is enforceable and precludes the defendant from collateral attacking a sentence on

the basis of ineffective assistance of counsel. Williams, 396 F.3d at 1342.

      On October 14, 2014, the United States Department of Justice issued a

memorandum to all federal prosecutors regarding the enforcement of appeal

waivers in which defendants waive claims of ineffective assistance of counsel on

direct appeal and collateral attack. See Memorandum from James M. Cole, Deputy

Attorney General, to All Federal Prosecutors (Oct. 14, 2014), available at

http://pdfserver.amlaw.com/nlj/DOJ_Ineffective_Assistance_Counsel.pdf          (“For


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cases in which a defendant’s ineffective assistance claim would be barred by a

previously executed waiver, prosecutors should decline to enforce the waiver when

defense counsel rendered ineffective assistance resulting in prejudice or when the

defendant’s ineffective assistance claim raises a serious debatable issue that a court

should resolve.”).       On at least three occasions since this new policy was

announced, and in response to inquiries from this Court, the government has

withdrawn its reliance on a defendant’s collateral-attack waiver in a pending

appeal. As a result, we have vacated the judgments denying § 2255 relief and

remanded those cases to the district court to afford the defendant an evidentiary

hearing on his claim of ineffective assistance. See Marshall v. United States, 592

F. App’x 919 (11th Cir. 2015); Murdock v. United States, 589 F. App’x 526 (11th

Cir. 2015); Jones v. United States, 582 F. App’x 845 (11th Cir. 2014).

       Here, however, in contrast to Marshall, Murdock, and Jones, the government

has not withdrawn its reliance on Demello’s collateral-attack waiver.3

Acknowledging the October 2014 policy statement, the government nonetheless

continues to seek enforcement of the waiver because, “in the federal prosecutor’s

judgment, the alleged ineffective assistance either did not result in prejudice or


       3
             Contrary to Demello’s assertion, the government is not procedurally barred from
relying on the sentence-appeal waiver. As indicated above, the government moved to dismiss
Demello’s initial § 2255 motion based on the waiver, and that motion was granted. The
government’s response to Demello’s “revised” § 2255 motion, filed after entry of judgment on
his initial § 2255 motion, is not relevant because it is outside the scope of the COA. See Murray,
145 F.3d at 1251.
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does not raise a serious debatable issue.” (Appellee’s Br. at 21). The new policy

does not prohibit prosecutors from seeking to enforce a collateral-attack waiver, so

Demello’s contention that the policy renders the waiver null and void is unavailing.

      After careful review, we conclude that Demello’s collateral-attack waiver is

enforceable because he knowingly and voluntarily waived his right to collateral

review.   During the plea colloquy, the district court specifically questioned

Demello about the collateral-attack waiver and told him that he was waiving his

right to both a direct appeal and “an indirect appeal in a post-conviction

proceeding.” Demello affirmed that he understood the terms of the waiver and had

agreed to those terms. When asked later by the court as to whether he had any

questions about the matters discussed, Demello responded that he had none. In

addition, the terms of the plea agreement, and the representations Demello made

therein, further show that Demello understood the significance of the waiver. The

waiver expansively provides that Demello waived “the right to collaterally attack

the conviction and sentence in any post-conviction proceeding, including a 28

U.S.C. § 2255 proceeding, on any ground,” and Demello affirmed that he had read

the plea agreement (which, of course, includes the waiver) and understood its

terms. In sum, the circumstances show that Demello was specifically questioned

about the waiver and that he understood its full significance. See Bushert, 997




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F.2d at 1351. Therefore, the government demonstrated that the collateral-attack

waiver was made knowingly and voluntarily. See Williams, 396 F.3d at 1341-42.

         Further, the district court correctly concluded that the collateral-attack

waiver in Demello’s plea agreement barred his ineffective-assistance-of-counsel

claim.      Demello argued in his § 2255 motion that, because of counsel’s

ineffectiveness, the district court improperly found the total loss amount, which

significantly increased the advisory guideline range.           In short, Demello

“attempt[ed] to attack, in a collateral proceeding, the sentence through a claim of

ineffective assistance of counsel during sentencing.”      Id. at 1342.   The plain

language of the waiver informed Demello that he was waiving a collateral attack

on his sentence “in any post-conviction proceeding, including a 28 U.S.C. § 2255

proceeding, on any ground.” Consequently, the collateral-attack waiver in his plea

agreement precludes a § 2255 claim based on ineffective assistance at sentencing.

See id.

         Finally, the district court did not abuse its “considerable discretion” by

declining to hold an evidentiary hearing. See Winthrop-Redin, 767 F.3d at 1216.

Despite Demello’s present contentions that he did not understand what rights he

was giving up by executing the appeal waiver and that the waiver therefore was not

knowing and voluntary, he stated under oath during the plea colloquy that he

understood and had agreed to the terms of the sentence-appeal waiver. A strong


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presumption exists that statements made during a plea colloquy are true. See id. at

1216-17. In addition, as explained above, the record otherwise demonstrates that

the sentence-appeal waiver was entered into knowingly and voluntarily. Under the

circumstances, the court was not required to hold an evidentiary hearing. See id.

      In sum, the sentence-appeal waiver in Demello’s plea agreement precludes a

§ 2255 claim based on ineffective assistance at sentencing. See Williams, 396 F.3d

at 1342. Accordingly, we affirm the denial of Demello’s § 2255 motion.

      AFFIRMED.




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