            Case: 18-13057    Date Filed: 12/11/2019   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13057
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:17-cr-00378-KOB-SGC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

DIONTEZ JAMEL MOORE,

                                                           Defendant-Appellant.

                       ________________________

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

                             (December 11, 2019)



Before WILSON, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
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      With the benefit of a plea bargain, Diontez Moore pled guilty to conspiracy

to distribute 500 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

and 21 U.S.C. § 846. In this case, Moore attempts to appeal his sentence of 292

months’ imprisonment. He argues that the district court clearly erred when it: (1)

applied a two-level enhancement after it found that he acted as the organizer,

leader, manager, or supervisor of a drug conspiracy (U.S.S.G. § 3B1.1(c)); (2)

applied a two-level enhancement after it determined that he obstructed justice

(U.S.S.G. § 3C1.1); and (3) decided that his prior conviction for first-degree

possession of marijuana for other than personal use was a predicate conviction

supporting his designation as a career offender (U.S.S.G. § 4B1.1(b)).

      The government filed a motion to dismiss Moore’s appeal because his plea

agreement included an appeal waiver. For the reasons that follow, we grant that

motion to dismiss.

                                         I.

      Moore was charged in a three-count indictment, but pursuant to his plea

agreement, he pled guilty to only one count. In exchange for his plea, the

government agreed to move to dismiss the other counts after sentencing, to

recommend that Moore receive a sentence reduction for acceptance of

responsibility, and to recommend a sentence at the low-end of the guideline range.




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      The plea agreement also included an appeal waiver stipulating, in relevant

part, that Moore waived his rights to appeal his conviction and sentence, as well as

any fines or restitution the district court might impose. But Moore retained his

right to appeal if: (1) the sentence was imposed in excess of the statutory

maximum; (2) the sentence imposed was an upward departure “from the advisory

guideline sentencing range calculated by the court at the time [his] sentence [was]

imposed”; or (3) he received ineffective assistance of counsel. Moore signed

directly under the waiver provision to attest that he fully understood the waiver and

that he knowingly and voluntarily entered into it. Moreover, Moore, his counsel,

and the government’s counsel signed the plea agreement.

      At his change-of-plea hearing, while under oath, Moore confirmed that he

signed the plea agreement, that he and his counsel had adequate time to discuss the

agreement, and that he had no further questions about the plea agreement. Then

the district court asked Moore about the appeal waiver.

             THE COURT: Mr. Moore, the plea agreement that you
             have signed contains language waiving or giving up
             some or all of your rights to appeal the sentence that’s yet
             to be imposed or to collaterally challenge your
             conviction.

             Do you understand what I mean by those terms: Waiver,
             appeal, collateral challenge?

             THE DEFENDANT: Yes, ma’am.



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             THE COURT: Under certain conditions you can waive or
             give up those rights and a waiver would be enforced
             against you to prevent an appeal or a collateral challenge.
             However, if you believe for some reason that the waiver
             is not enforceable against you, then you can appeal the
             sentence and present the theory about the waiver to the
             appellate court.

             At the time you signed this plea agreement, did you
             understand, Mr. Moore, that you were giving up some or
             all of those rights?

             THE DEFENDANT: Yes, ma’am.

             THE COURT: Did you discuss the waiver with your
             attorney?

             THE DEFENDANT: Yes, ma’am.

             THE COURT: Did you reach your own independent
             decision that giving up those rights was in your best
             interest under the circumstances of this case?

             THE DEFENDANT: Yes, ma’am.

             THE COURT: Do you have any questions about that
             waiver?

             THE DEFENDANT: No, ma’am.

      Later, in this same hearing, Moore confirmed that he understood that he

could not withdraw his plea on the basis of the court’s sentence and that his

statutory mandatory minimum penalty was ten years to life imprisonment. The

district court accepted Moore’s guilty plea, finding it was entered freely,

voluntarily, and knowingly.


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                                         II.

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

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). When a defendant challenges

his sentence on appeal by raising claims that the government argues are barred by

an appeal waiver, the government may file a motion to dismiss those claims.

United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (per curiam). An

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 prevail, the

government cannot show that the appeal was knowing and voluntary from an

examination of the plea agreement’s text alone. Id. at 1352. Instead, the

government must demonstrate either that: (1) the district court explicitly

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. at 1351.

      On this record, it is clear that Moore knowingly and voluntarily waived his

right to appeal in all circumstances but the three exceptions outlined in the appeal

waiver. Moore acknowledged the waiver in his plea agreement by signing directly

below the waiver and attesting that he was “knowingly and voluntarily entering

into this waiver.” Beyond that, the district court specifically questioned Moore

about the waiver during his change-of-plea hearing, explained the significance of


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the waiver, and assured that Moore understood the full significance of the waiver.

The district court inquired as to whether Moore understood what “waiver,”

“appeal,” and “collateral challenge” meant. He answered, “Yes, ma’am.” The

district court told Moore that “under certain conditions [he could] waive or give up

those rights and a waiver would be enforced against [him] to prevent an appeal or a

collateral challenge.” It then asked him if, at the time he signed the plea

agreement, he understood that he was “giving up some or all of those rights[.]”

Again, he answered, “Yes, ma’am.” Moore further affirmed that he discussed the

waiver with his attorney, that he made the decision to waive his rights voluntarily,

and that he had no further questions about the appeal waiver.

      Based on the plea agreement and transcript of the change-of-plea hearing,

the government has established that Moore knowingly and voluntarily waived his

right to appeal, and therefore, the appeal waiver is valid and enforceable. Because

Moore’s claims in this case are related to his guideline range and bring into

question the validity of his sentence, his claims are barred by the appeal waiver.

                                         III.

      Perhaps foreseeing the above conclusion about the validity and

enforceability of his appeal waiver, Moore acknowledges the waiver but argues

that if we were to address the merits of his case and rule in his favor, he would fall

into one of the waiver’s exceptions: the sentence imposed was an upward departure


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“from the advisory guideline sentencing range calculated by the court at the time

[his] sentence [was] imposed.”

      But that is not how this exception works. We interpret plea agreements “in

accord with what the parties intended.” United States v. Rubbo, 396 F.3d 1330,

1334 (11th Cir. 2005). And absent some indication that the parties intended

otherwise, the language of the agreement should be given its ordinary and natural

meaning. See id. at 1334-35. Here, to reach the merits of Moore’s claims, we

would need to ignore the clear and unambiguous language of the very exception

Moore is seeking to enforce and determine if the guideline range the district court

calculated was the properly determined range. Our read of the waiver is that the

parties plainly intended that it permit the appeal of a sentence imposed in excess of

the guideline range “calculated by the court at the time sentence is imposed.” The

district court determined, at the time Moore’s sentence was imposed, that the

appropriate guideline range was between 292 to 365 months’ imprisonment.

Moore was sentenced at the low-end of that range. Therefore, Moore’s argument

is barred by the objective terms of the appeal waiver and its exceptions. To reach

the merits, in spite of the clear words of the appeal waiver, would deprive “the

government of the benefit that it has bargained for and obtained in the plea

agreement containing the sentence waiver.” See Buchanan, 131 F.3d at 1008.




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                                        IV.

      In sum, Moore knowingly and voluntarily waived his right to appeal his

sentence and the manner in which his sentence was imposed, except under limited

circumstances. The claims he raised in this appeal are barred by his appeal waiver,

and none of the exceptions to that waiver are implicated by his claims.

Accordingly, Moore’s appeal is

      DISMISSED.




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