               Case: 17-14015        Date Filed: 01/09/2020      Page: 1 of 10


                                                                   [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-14015
                               ________________________

                      D.C. Docket No. 2:16-cr-00560-RBD-WC-1



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

versus

TAURIO KORTAVIOUS HARRIS,

                                                          Defendant - Appellant.

                               ________________________

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

                                      (January 9, 2020)

Before ED CARNES, Chief Judge, ROSENBAUM, Circuit Judge, and VINSON,*
District Judge.



         *
          Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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PER CURIAM:

      Taurio Harris entered a written plea agreement with the government and

later pleaded guilty to being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). As part of his plea agreement, he waived his right to appeal or

collaterally attack his sentence, except for claims of ineffective assistance of

counsel or prosecutorial misconduct. He specifically waived the right to challenge

his sentence based on the district court’s determination of his guidelines range.

      The district court calculated Harris’ guidelines range as 92 to 115 months

imprisonment, and he faced a statutory maximum of ten years. He was sentenced

to 92 months, the bottom end of the range. He appeals his sentence, contending

that his guidelines range was improperly determined based on a cross-reference to

voluntary manslaughter.

                                          I.

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

waiver. Harris did not file a response. A motions panel of this Court issued an

order denying the government’s motion and stating that the waiver was invalid and

unenforceable.

      In its brief on the merits, the government has renewed its contention that the

appeal waiver bars Harris’ appeal. It urges us, as the panel considering the appeal

on the merits, to vacate the motion panel’s earlier order. We have the authority to

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do that. See 11th Cir. R. 27-1(g) (“A ruling on a motion or other interlocutory

matter, whether entered by a single judge or a panel, is not binding upon the panel

to which the appeal is assigned on the merits, and the merits panel may alter,

amend, or vacate it.”). It is late, but not too late, to determine whether the appeal

waiver is enforceable. See id.; see also United States v. Buchanan, 131 F.3d 1005,

1008 (11th Cir. 1997) (“Motions to dismiss based upon sentence appeal waivers

should be decided at the earliest stage in the process at which it is feasible to do so.

. . .”).

           We review de novo the validity of an appeal waiver. United States v.

Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).

                                            II.


           “A sentence appeal waiver must be made knowingly and voluntarily.” Id.

(citing United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001)). “The

waiver is valid if the government shows either that: (1) the district court

specifically questioned the defendant about the waiver; or (2) the record makes

clear that the defendant otherwise understood the full significance of the waiver.”

Id. (citing United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)).

      We have explained:

           [K]nowingly and voluntarily entered plea agreements containing
           appeal waivers are like contracts in which the government and the
           defendant have bargained for a deal. Defendants and the government

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      alike benefit from the ability to bargain and undermining the
      enforceability of such bargains harms all parties that use them. For that
      reason, among others, as long as an appeal waiver is voluntarily and
      knowingly entered into as part of a valid plea agreement, and that
      agreement is accepted by the court, the waiver is enforceable.

United States v. Bascomb, 451 F.3d 1292, 1296–97 (11th Cir. 2006) (citations

omitted). Only in extreme cases, such as if a defendant were sentenced to a public

flogging, should an appeal be heard despite a knowing and voluntary waiver. See

id. at 1295.

      We have emphasized that “a waiver of appellate rights applies not only to

frivolous claims, but also to difficult and debatable legal issues. Indeed, it even

includes a waiver of the right to appeal blatant error.” United States v. DiFalco,

837 F.3d 1207, 1215 (11th Cir. 2016) (citations and quotation marks omitted). That

is so because “when the parties have struck a deal that includes the appeal waiver,

a decision altering the terms of that waiver would cut the heart out of the bargain.”

United States v. Lewis, 928 F.3d 980, 986 (11th Cir. 2019) (alterations and

quotation marks omitted). “We will not perform a waiverectomy.” Id.

      If an enforceable appeal waiver applies, Harris is barred from challenging

his sentence, and we are “required to dismiss his appeal.” DiFalco, 837 F.3d at

1215 (emphasis added).




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                                        III.

      With the assistance of counsel, Harris pleaded guilty to a felon in possession

of a firearm charge, and he entered a written plea agreement. Harris’ plea

agreement does contain an appeal waiver, set out with an underlined heading in

bold and all capital letters titled: “THE DEFENDANT’S WAIVER OF

APPEAL AND COLLATERAL ATTACK.” The waiver states:


      Understanding that 18 U.S.C. § 3742 provides for appeal by a defendant
      of the sentence under certain circumstances, the defendant expressly
      waives any and all rights conferred by 18 U.S.C. § 3742 to appeal the
      sentence. The defendant specifically waives the right to appeal the
      sentence on the grounds that (a) the sentencing guidelines are in any
      respect unconstitutional, (b) any fact found by the Court for sentencing
      was not alleged in the Indictment, admitted by the defendant, found by
      a jury, or found beyond a reasonable doubt, (c) the sentence imposed
      was unreasonable, and (d) that the Court erred in determining the
      applicable Guidelines range pursuant to the United States Sentencing
      Guidelines. The defendant further expressly waives the right to appeal
      the conviction and sentence on any other ground and waives the right
      to attack the conviction and sentence in any post-conviction
      proceeding, including proceedings pursuant to 28 U.S.C. § 2255. This
      waiver does not include the right to appeal on the grounds of ineffective
      assistance of counsel or prosecutorial misconduct, or to collaterally
      attack the sentence imposed on those grounds. But, other than those
      grounds, the defendant expressly waives the right to appeal or
      collaterally attack his conviction or sentence on any other ground.

The next provision says: “The defendant understands and acknowledges that,

although the parties are permitted to make recommendations and present

arguments to the Court, the sentence and the United States Sentencing Guidelines,

if any, applicable to the defendant’s case will be determined solely by the Court,
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with the assistance of the United States Probation Office.” Harris agreed to all of

those provisions, and he and his counsel signed the plea agreement.

      At the plea colloquy, the judge placed Harris under oath and questioned him

to ensure that his plea was knowing and voluntary. Harris confirmed that it was

his signature on the plea agreement. He testified that he had reviewed the

agreement with his attorney and that he understood its terms. He testified that no

one had threatened him or tried to force him to sign it. He agreed that he

understood that the sentencing judge was free to “follow the agreement in whole or

in part or not at all,” and in any event he would still be bound by his guilty plea.

      The judge told Harris that he faced a maximum sentence of ten years in

prison. He told Harris that his sentence would be determined using a number of

factors, including the calculation of his advisory guidelines range. Harris

acknowledged that his counsel had discussed with him how the guidelines might

apply. The judge emphasized that no one, including the judge who would later

impose his sentence, could tell Harris “precisely what the guidelines are going to

require in your case and that the sentence may very well be different than any

estimate that your lawyer may have given you.” Harris said he understood that.

The judge went on to explain that even if Harris’ lawyer could accurately predict

what the guidelines would require, the sentencing judge had to consider other




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factors and could impose a sentence “more severe or less severe” than the

guidelines called for. Harris said he understood that.

      The judge specifically addressed the appeal waiver and the fact that under

the terms of the written plea agreement Harris was giving up his appeal rights.

There was this exchange on the subject:

      THE COURT: Mr. Harris, ordinarily a person who enters a plea of
      guilty or one who goes to trial and is found guilty — ordinarily, under
      those circumstances, that person may still appeal their conviction or
      their sentence or both, or they may collaterally attack their conviction
      or their sentence or both. Do you understand that under the terms of
      your plea agreement, that if you get the benefit of the deal that you’ve
      struck with the government, that you’ve given up your rights to do those
      things.

      THE DEFENDANT: Yes, sir.

      THE COURT: And do you know and understand that if you didn’t have
      that provision in your plea agreement, that if you chose to appeal, that
      this Court could provide you with a free attorney and a free transcript
      so that you could appeal if you chose to do so?

      THE DEFENDANT: Yes, sir.

      THE COURT: And you understand you’re giving that up if you get the
      benefit of the bargain that you’ve struck with the government?

      THE DEFENDANT: Yes, sir.

The judge did not discuss the waiver’s two exceptions for claims of ineffective

assistance of counsel or prosecutorial misconduct. Harris’ guilty plea was

accepted, and a judgment of conviction was entered.



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                                                IV.

       The only conceivable grounds for finding that Harris’ appeal waiver was

involuntary is that the judge did not recite during the plea colloquy the two

exceptions that the written plea agreement contained. Arguably, by not mentioning

the waiver’s two exceptions, the judge overstated the breadth of the waiver and

implied that Harris was waiving more rights than he actually was under the

agreement.1

       The fact that the waiver in the written plea agreement is more favorable to

Harris than the one the judge described does not, in this case, mean that his appeal

waiver was involuntary or invalid, since Harris’ agreement to the judge’s

description of the appeal waiver necessarily indicated his agreement to his actual,

narrower appeal waiver. The court asked him if he understood that he was waiving

his right to appeal his sentence, and he swore that he did. That is the essence of a

voluntary waiver. See Bushert, 997 F.2d at 1350 (explaining that “one of the keys

to enforcing a sentence appeal waiver is that the defendant knew he had a right to




       1
          There is nothing to indicate that the judge in this case intentionally characterized the
appeal waiver as broader than it actually was, and we do not imply that he did. Still, judges
should take care to describe an appeal waiver accurately. Including in the description any
exceptions to the waiver will ensure that the defendant understands what rights of appeal he has
left. In this opinion, we address only the facts before us and do not preclude the possibility that
an overbroad description of a waiver in some different circumstances might show that the
defendant did not understand the actual terms of the plea agreement and waiver.
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appeal his sentence and that he was giving up that right”) (quotation marks

omitted).

      A defendant who agrees to waive his appeal rights with no exceptions

whatever is willing to waive more than a defendant who agrees to waive his appeal

rights except for two claims or issues if they apply. Everything is more than

everything with two exceptions. There is no imaginable reason why Harris would

agree to waive all his appeal rights but not agree to waive some but not all. If the

misstatement had run in the opposite direction –– telling the defendant the waiver

was narrower than it was, that he was giving up less than he actually was –– there

might well be a problem with voluntariness. Cf. id. at 1352–53 (concluding that it

was confusing when the district court told the defendant at the plea colloquy that

he was “waiving his right to appeal the charges against him” and then told him that

he might have the right to appeal his sentence “under some circumstances” when

he actually “was giving up his right to appeal under most circumstances”).

      Harris has neither invoked the appeal waiver exceptions in his plea

agreement nor made any argument that could fit within them. And the argument

he has made challenging his sentence fits squarely within the heart of the waiver,

both as written and as the judge explained it to him.

      The waiver states: “The defendant specifically waives the right to appeal the

sentence on the grounds that . . . the Court erred in determining the applicable


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Guidelines range pursuant to the United States Sentencing Guidelines.” Harris’

sole argument on appeal is that the district court erred in determining his guidelines

range by applying the cross-reference for voluntary manslaughter. 2 The plain

terms of the appeal waiver foreclose an appeal on that basis.

       “The classic definition of waiver is ‘an intentional relinquishment or

abandonment of a known right or privilege.’” Lewis, 928 F.3d at 986 (quoting

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938)). By the

express terms of the appeal waiver, Harris has intentionally relinquished and

abandoned his right to appeal his sentence based on the district court’s

determination of the applicable guidelines range.

                                                V.

       For those reasons, this Court’s earlier order is VACATED, and the appeal is

DISMISSED.3




       2
          We do not fault Harris’ counsel for making that argument. She was directed to do so
after her motion to withdraw was denied. She has provided able representation to Harris
throughout this appeal, and her public service as a court-appointed attorney is in keeping with the
best traditions of the Bar.
       3
       This appeal was originally scheduled for oral argument but was removed from the oral
argument calendar by unanimous consent of the panel under 11th Circuit Rule 34–3(f).
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