United States v. Allandoe C. Boyd

Case: 18-11063 Date Filed: 09/16/2020 Page: 1 of 13

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-11063

________________________

D.C. Docket No. 4:17-cr-00029-CAL-MSH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALLANDOE C. BOYD,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(September 16, 2020)

Before BRANCH, MARCUS, Circuit Judges, and HUCK,* District Judge.

*

Honorable Paul C. Huck, United States District Judge for the Southern District of

Florida, sitting by designation.

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BRANCH, Circuit Judge:

Allandoe Boyd decided to plead guilty and entered into a plea agreement

wherein he waived “any right to an appeal or other collateral review” of his

sentence unless “the District Court imposes a sentence that exceeds the advisory

guideline range.” At sentencing, the district court determined that the advisory

guideline range was 110 to 120 months and sentenced Boyd to 120 months of

imprisonment, three years of supervised release, and a mandatory $100 assessment

fine. Despite this within guidelines sentence and his sentence-appeal waiver, Boyd

contends that his appeal is nonetheless permissible because he is arguing that the

district court incorrectly calculated the guideline range in the first instance.

Because we conclude that the sentence-appeal waiver is unambiguous and was

made knowingly and voluntarily, we GRANT the government’s motion to dismiss.

I. Background

In August 2017, Boyd was charged by a superseding Information with

possession of a firearm by a convicted felon. 1 Boyd waived his right to a grand

jury indictment and pleaded guilty, pursuant to a written plea agreement. In

relevant part, the plea agreement provided that Boyd faced a maximum sentence of

10 years’ imprisonment, followed by three years of supervised release, and that the

1

In July 2017, a federal grand jury initially indicted Boyd on charges of possession of a

firearm by a convicted felon (Count 1), possession of a firearm in furtherance of a drug

trafficking crime (Count 2), and possession with intent to distribute heroin (Count Three).

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district court would determine the advisory guideline range after the presentence

investigation report (“PSI”) was completed by the United States Probation Office.

The plea agreement cautioned that the district court was “not bound by any

estimate of the advisory sentencing range that defendant may have received from

defendant’s counsel, the government, or the Probation Office.” Further, Boyd

could not “withdraw [his] plea because [he] has received an estimated guideline

range from the government, [his] counsel, or the Probation office which is different

from the advisory guideline range computed by the Probation Office in the [PSI]

and found to be the correct advisory guideline range.” The plea agreement

explained that Boyd would have an opportunity to object to the PSI and

information contained therein, but that “any objections or challenges by [Boyd] or

[his] attorney to the [PSI], the Court’s evaluation and rulings, or the Court’s

sentence, [would] not be grounds for withdrawal of the plea of guilty.” In addition,

the agreement explained that the district court had “the discretion to impose a

sentence that is more severe or less severe than the advisory guideline range.”

Finally, the sentence-appeal waiver in the plea agreement provided as follows:

The defendant understands that ordinarily Title 18, United States

Code, Section 3742, will in certain cases allow for a direct appeal

after sentencing followed by the Court of Appeals’ limited review of a

defendant’s sentence. But once this agreement is accepted and

sentence is imposed by the District Court, defendant by this

agreement forever waives any right to an appeal or other collateral

review of defendant’s sentence in any court, other than any claim of

ineffective assistance of counsel. However, in the event that the

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District Court imposes a sentence that exceeds the advisory guideline

range, then the defendant shall retain only the right to pursue a timely

appeal directly to the Court of Appeals after the District Court

imposes its sentence. In the event that the defendant retains the right

to a direct appeal, that right is limited to appealing sentencing issues

only. The defendant and the United States Attorney agree that

nothing in this plea agreement shall affect the government’s right or

obligation to appeal as set forth in Title 18, United States Code,

Section 3742(b). If, however, the United States Attorney appeals the

defendant’s sentence pursuant to this statue [sic], the defendant is

released from defendant’s waiver of defendant’s right to appeal

altogether.

(emphasis added). Boyd initialed each page of the agreement, affirmed that he

read and discussed the plea agreement with his attorney, and that he fully

understood it and agreed to its terms, and signed the agreement. Boyd’s counsel

also signed the agreement.

At the change-of-plea hearing, the district court conducted a plea colloquy

consistent with Rule 11 of the Federal Rules of Criminal Procedure.2 In relevant

part, the district court advised Boyd that the guidelines were advisory, that it would

“calculate the advisory guideline range,” and that it would consider that range

along with other relevant factors in determining the appropriate sentence. The

district court also explained that the sentence it imposed on Boyd might differ from

2

Rule 11(b) sets out the procedures that district courts must follow when accepting guilty

pleas. See Fed. R. Crim. P. 11(b). These procedures are designed to address the three “core

objectives” necessary for a knowing and voluntary guilty plea: (1) that the defendant enters his

plea free from coercion, (2) that he understands the nature of the charges, and (3) that he

understands the consequences of his plea. See United States v. Monroe, 353 F.3d 1346, 1354

(11th Cir. 2003).

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any prior estimate that he may have received, and that the court could impose a

sentence that was more or less severe than the applicable guideline range. Boyd

confirmed that he understood this information. Boyd also confirmed that he had

discussed the plea agreement with his attorney and that he had read and understood

it. The district court advised Boyd that, per the plea agreement, if the district court

“sentence[d] [him] within the advisory guideline range, [he would] not be able to

appeal that sentence or ever attack it in any way through a direct appeal or some

collateral attack such as habeas corpus[,]” and Boyd stated that he understood. The

district court ultimately accepted Boyd’s guilty plea, concluding that he was

competent and capable, understood the consequences of the plea, and that he

entered into the plea knowingly and voluntarily.

In preparing the PSI using the 2016 United States Sentencing Guidelines

Manual, the probation office determined that Boyd’s base offense level was 22,

pursuant to U.S.S.G. § 2K2.1(a)(3), 3 because Boyd possessed a semiautomatic

firearm capable of accepting a large capacity magazine and he had a prior felony

conviction for a controlled substance—a 1999 Georgia conviction for possession

of marijuana with intent to distribute. Six additional offense points were assessed

3

Section 2K2.1 of the Sentencing Guidelines sets forth the base offense level for

unlawful possession of firearms. See U.S.S.G. § 2K2.1. The base offense level is “22, if (A) the

offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity

magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the defendant

committed any part of the instant offense subsequent to sustaining one felony conviction of

either a crime of violence or a controlled substance offense.” Id. § 2K2.1(a)(3).

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because the offense involved multiple firearms and Boyd possessed the firearms in

connection with another felony offense (trafficking heroin). With a three-point

reduction for acceptance of responsibility, Boyd’s total adjusted base offense level

was 25, which when combined with his category VI criminal history score,

resulted in an advisory guideline range of 110 to 120 months’ imprisonment.

Prior to sentencing, Boyd objected to the guidelines calculation in the PSI,

arguing, as relevant to this appeal, that his prior Georgia conviction for possession

with intent to distribute marijuana did not qualify as a “controlled substance

offense” for purposes of the Guidelines because it is “categorically overbroad.”

The probation office maintained that it had properly calculated the guideline range,

but acknowledged that if Boyd was correct, his base offense level would by

lowered to 17 with a resulting guideline range of 51 to 63 months’ imprisonment.

At sentencing, after hearing argument from Boyd’s counsel, the district court

overruled Boyd’s objection and determined that the total adjusted base offense

level was correctly calculated at 25 and the resulting guideline range was 110 to

120 months’ imprisonment. The district court sentenced Boyd to 120 months’

imprisonment, followed by three years of supervised release. This appeal

followed. The government has moved to dismiss this appeal based on the

sentence-appeal waiver.

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II. Discussion

“A plea agreement is, in essence, a contract between the Government and a

criminal defendant. Among the considerations that a defendant may offer as part

of such a contract is waiver of his right to appeal, provided that the waiver is made

knowingly and voluntarily.” United States v. Howle, 166 F.3d 1166, 1168 (11th

Cir. 1999). “When a defendant attempts to appeal a sentence in the face of an

appeal waiver, the government may file a motion to dismiss the appeal based upon

the waiver.” United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997).

Where the government seeks to enforce an appeal waiver, “[it] must show that

either (1) the district court specifically questioned the defendant concerning the

sentence appeal waiver during the [plea] colloquy, or (2) it is manifestly clear from

the record that the defendant otherwise understood the full significance of the

waiver.” United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). “We

have consistently enforced knowing and voluntary appeal waivers according to

their terms.” United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006)

(collecting cases). We review “the validity of a sentence appeal waiver de novo.”

United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Boyd argues that

the appeal waiver does not bar his appeal because its language was ambiguous, and

it was not knowingly and voluntarily made. We address each argument in turn.

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A. Boyd’s appeal waiver is unambiguous and it bars this appeal provided it

is otherwise enforceable

We interpret the language of a plea agreement according to its plain and

ordinary meaning. See United States v. Hardman, 778 F.3d 896, 900 (11th Cir.

2014) (“The language of a plea agreement should be given its ordinary and natural

meaning unless the parties indicate otherwise.”); United States v. Rubbo, 396 F.3d

1330, 1334 (11th Cir. 2005) (explaining that the terms of plea agreements should

be interpreted according to “their usual and ordinary meaning”). “[I]n determining

the meaning of disputed terms, the court applies an objective standard and eschews

both ‘a hyper-technical reading of the written agreement’ and ‘a rigidly literal

approach in the construction of the language.’” Hardman, 778 F.3d at 900

(quoting United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004)).

“When a plea agreement is ambiguous, it ‘must be read against the government.’”

Copeland, 381 F.3d at 1105–06 (quoting Raulerson v. United States, 901 F.2d

1009, 1012 (11th Cir. 1990)).

The appeal waiver in this case allows Boyd to appeal if his sentence

“exceeds the advisory guideline range.”4 Boyd argues that ambiguities in the plea

4

The sentence-appeal waiver also contains exceptions that permit Boyd to raise an

ineffective-assistance-of-counsel claim and release him from the appeal waiver if the

government files a notice of appeal. But neither of these exceptions are relevant to this appeal.

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agreement must be construed against the government, and in his case an ambiguity

is present because the appeal waiver did not specify who will calculate the

guideline range. Accordingly, we turn to the plain, ordinary meaning of “the

advisory guideline range.”

It is well-established that only the district court determines the guideline

range. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1342 (2016) (“At

the outset of the sentencing proceedings, the district court must determine the

applicable Guidelines range.”); see also U.S.S.G. § 1B1.1(a) (“The court shall

determine the kinds of sentence and the guideline range as set forth in the

guidelines . . . .”). In other words, the guideline range does not exist until it is

calculated by the district court during the sentencing proceedings.

Furthermore, in this case, the remainder of Boyd’s plea agreement put to rest

any doubt as to the final arbiter of the guideline range. It emphasized repeatedly

that the district court would determine the guideline range after it received the PSI

and that any estimates as to the applicable guideline range Boyd may have received

from his counsel, the government, or the probation office were non-binding and

could not serve as a basis for withdrawing his plea. Therefore, we hold that the

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phrase “the advisory guideline range,” as used in the plea agreement here,

unambiguously refers to the guideline range as determined by the district court.5

Accordingly, pursuant to the terms of the plea agreement, Boyd was barred

from appealing his sentence—including any contested issues underlying his

sentence, such as the court’s calculation of the guideline range or any rulings at

sentencing—unless his sentence exceeded the applicable advisory guideline range

of 110 to 120 months’ imprisonment. Boyd’s 120-month sentence was within the

guideline range and therefore does not fall within any of the enumerated

exceptions, and he did not otherwise preserve his right to appeal the guideline

calculation. In other words, to reach the merits of Boyd’s challenges to his

sentence, in spite of the appeal waiver, would deprive “the government of the

5

At oral argument, Boyd asserted that according to his reading of the appeal waiver he

would be barred only from bringing frivolous claims as it pertains to the Guidelines, but he could

appeal any other matter “if it’s a guidelines issue.” But “[w]aiver would be nearly meaningless

if it included only those appeals that border on the frivolous.” United States v. Howle, 166 F.3d

1166, 1169 (11th Cir. 1999). Rather, “[a]n appeal waiver includes the waiver of the right to

appeal difficult or debatable legal issues or even blatant error.” United States v. Grinard-Henry,

399 F.3d 1294, 1296 (11th Cir. 2005). Furthermore, such a reading would circumvent the

purpose of a sentence-appeal waiver and would render such waivers effectively meaningless. As

we explained previously,

plea agreements containing such waivers save the government time and money by

conveying an immediate and tangible benefit in the saving of prosecutorial

resources. A sentence appeal waiver is also of value to a defendant, because it is

another chip the defendant can bring to the bargaining table and trade for

additional concessions from the government. Requiring the government to file an

appeal brief even though there is an appeal waiver substantially diminishes the

value of the waiver to the government, and by extension to defendants who are

willing to bargain away their right to appeal the sentence.

Buchanan, 131 F.3d at 1008 (internal citations omitted).

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benefit that it has bargained for and obtained in the plea agreement containing the

sentence waiver.” Buchanan, 131 F.3d at 1008. Consequently, the appeal waiver

bars the instant appeal provided that it is enforceable, which leads us to Boyd’s

second argument—that the waiver was not knowingly and voluntarily made.

B. The Rule 11 Colloquy Established that Boyd’s Appeal Waiver was

Knowing and Voluntary

Boyd argues that the appeal waiver was not knowingly and voluntarily made

because the district court “did not discuss the appeal waiver” at the change-of-plea

hearing and did not “describe any of the three exceptions to the waiver.” He

further argues that the district court did not make clear that he was waiving his

right to appeal any disputed guidelines calculations. We disagree.

Boyd’s appeal waiver was knowing and voluntary because the district court

specifically questioned him about the waiver during the plea colloquy. See

Bushert, 997 F.2d at 1351. During the plea colloquy, the district court expressly

advised Boyd that, per the sentence-appeal waiver, if it “sentence[d] [him] within

the advisory guideline range, [he would] not be able to appeal that sentence or ever

attack it in any way through a direct appeal or some collateral attack such as

habeas corpus[,]” and Boyd stated that he understood. While the district court may

not have discussed all the exceptions to the waiver—that Boyd could appeal a

sentence that exceeded the guideline range, that he was released from the waiver if

the government appealed, and that he could still pursue an ineffective-assistance-

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of-counsel claim—its failure to question Boyd about all of the possible exceptions

to the waiver does not alter whether the waiver was made knowingly and

voluntarily, as the touchstone for assessing this question is whether it was “clearly

convey[ed] to [the defendant] that he was giving up his right to appeal under most

circumstances.” Id. at 1352–53. By explaining to Boyd that, if he was sentenced

within the guideline range, he would not be able to appeal or “ever attack” his

sentence, the district court effectively conveyed to Boyd that he was giving up his

right to appeal his sentence under most circumstances. And, although the district

court did not expressly state that Boyd could not appeal any disputed guideline

calculations, it advised him that it would calculate the guideline range and that his

sentence could be outside that range and may be different from any other estimates

he may have received. Moreover, prior to the plea colloquy, Boyd initialed each

page of the plea agreement, including the page stating that he was giving up “any

right to an appeal” except “in the event that the District Court imposes a sentence

that exceeds the advisory guideline range.” He also signed the portion of the plea

agreement stating that he had read the agreement in its entirety, had discussed it

with his counsel, and understood the terms of the agreement. And, during the plea

colloquy, Boyd confirmed that he read and discussed the plea agreement with his

counsel and that he understood the terms. Accordingly, it is manifestly clear from

the record that the sentence-appeal waiver was knowingly and voluntarily made

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and is enforceable. Id. at 1351; see also United States v. Weaver, 275 F.3d 1320,

1333 (11th Cir. 2001) (enforcing an appeal waiver where “the waiver provision

was referenced during [the defendant’s] Rule 11 plea colloquy and [the defendant]

agreed that she understood the provision and that she entered into it freely and

voluntarily.”).

III. Conclusion

Accordingly, Boyd’s sentence-appeal waiver is valid, enforceable, and

forecloses this appeal. Therefore, we GRANT the government’s motion to

dismiss.

APPEAL DISMISSED.

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