Deandre Markee King v. United States

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14100

____________________

DEANDRE MARKEE KING,

a.k.a. Santonio Spratlin,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:13-cr-00073-TWT-JKL-1

____________________

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2 Opinion of the Court 20-14100

Before GRANT, LUCK, and ANDERSON, Circuit Judges.

GRANT, Circuit Judge:

A criminal defendant who wishes to plead guilty can waive

the right to challenge his conviction and sentence in exchange for

a better plea deal. With limited exceptions, a valid waiver of the

right to collateral appeal bars habeas claims brought under 28

U.S.C. § 2255. This case requires us to decide whether that

principle applies when a defendant seeks to challenge his sentence

based on the Supreme Court’s recent decision in United States v.

Davis, 139 S. Ct. 2319 (2019). In short, does a valid waiver of

collateral attack foreclose habeas relief based on a new retroactive

constitutional rule?

We hold that it does. None of the narrow exceptions that

permit a court to look past an appeal waiver apply here. Because

the defendant waived his right to bring a habeas challenge, we

affirm the district court’s order below. 1

I.

In 2012, Deandre King and three associates robbed a

Dunwoody, Georgia bank at gunpoint, escaping with $71,668.

With help from the bank’s surveillance cameras and the suspects’

cell phone data, FBI agents tracked down the perpetrators. King

1 The district court determined both that King’s collateral appeal waiver

prevented his petition and that King failed to overcome his procedural default.

Because the waiver is valid and no exception applies, we hold that it precludes

King’s claim. We thus do not reach the question of procedural default.

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20-14100 Opinion of the Court 3

and the others were arrested near another bank four months after

the robbery; the car they were traveling in contained guns, masks,

and gloves.

The government first charged King with three separate

crimes. But in exchange for King’s agreement to plead guilty, it

substituted a lesser set of charges: one count of conspiracy to

commit bank robbery under 18 U.S.C. § 371 and one count of

using, carrying, or possessing a firearm during a crime of violence

under 18 U.S.C. § 924(c)(1)(A)(ii). The government specified that

the “crime of violence” underlying the § 924(c) charge was

conspiracy to commit Hobbs Act robbery. King’s plea agreement

included a “waiver of appeal” giving up “the right to appeal his

conviction and sentence and the right to collaterally attack his

conviction and sentence in any post-conviction proceeding

(including, but not limited to, motions filed pursuant to 28 U.S.C.

§ 2255).” 2 The district court imposed a 135-month sentence, 51

months for the conspiracy offense and 84 months for the § 924(c)

offense.

As agreed, King did not directly appeal his conviction or

sentence after signing the waiver. But later developments in

constitutional law inspired him to mount a collateral challenge. In

2015, the Supreme Court held that the residual clause of the Armed

2 King’s waiver encompassed both the right to directly appeal and the right to

collaterally attack his conviction and sentence, but we call it an “appeal

waiver” for the sake of brevity.

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4 Opinion of the Court 20-14100

Career Criminal Act was unconstitutionally vague. Johnson v.

United States, 576 U.S. 591 (2015). Though King’s case was

unrelated to ACCA, he filed a pro se § 2255 motion to vacate his

sentence. The district court denied the motion, pointing out that

ACCA “played no role” in determining King’s sentence—and that,

in any case, King’s appeal waiver barred any collateral challenge.

Four years later, in United States v. Davis, the Supreme

Court applied its reasoning from Johnson to hold that the residual

clause of § 924(c) was also unconstitutional. 139 S. Ct. at 2336.

That opinion hit closer to home, because the government’s use of

conspiracy as an underlying “crime of violence” to King’s § 924(c)

conviction had relied on that statute’s residual clause. This Court

soon held that Davis ’s new constitutional rule was retroactive to

cases on collateral review. See In re Hammoud, 931 F.3d 1032,

1039 (11th Cir. 2019). When King requested permission to file a

second § 2255 motion challenging his conviction and sentence, we

granted it because King had made a prima facie showing that he

was entitled to relief under Davis. Soon after, we joined several

other circuits in holding that “conspiracy to commit Hobbs Act

robbery does not qualify as a ‘crime of violence’” for § 924(c)

purposes after Davis. Brown v. United States, 942 F.3d 1069, 1075–

76 (11th Cir. 2019) (quoting 18 U.S.C. § 924(c)(3)(A)).

The district court denied King’s second motion. First and

foremost, the court explained that King’s appeal waiver prevented

him from challenging his sentence. King argued that he qualified

for an exception to the appeal waiver, analogizing his case to one

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20-14100 Opinion of the Court 5

in which a district court imposed a sentence above the statutory

maximum. See United States v. Johnson, 541 F.3d 1064, 1068 (11th

Cir. 2008). But the court rejected that comparison as qualitatively

different. It also concluded that because King had not challenged

his sentence on direct appeal, his claim was procedurally barred.

King now appeals.

II.

We review the validity and scope of an appeal waiver de

novo. See United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir.

1993).

III.

As a rule, “sentence appeal waivers, made knowingly and

voluntarily, are enforceable.” Bushert, 997 F.2d at 1345. King

agreed not to challenge his conviction or sentence “on any ground”

outside an agreed-upon 84-month maximum for his firearms

conviction and as long as the district court stayed within the

Sentencing Guidelines range. Even so, King now asserts that the

Supreme Court’s decision in Davis is a “winning lottery ticket” that

“renders [his] § 924(c) conviction and sentence unlawful.” But

neither the law nor the odds are on his side.

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

Government and a criminal defendant.” United States v. Howle,

166 F.3d 1166, 1168 (11th Cir. 1999). Like any contract, a plea

agreement must be construed according to the intent and

reasonable expectation of the parties. United States v. Rubbo, 396

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6 Opinion of the Court 20-14100

F.3d 1330, 1334 (11th Cir. 2005). That interpretive practice is

longstanding and well understood—by both prosecutors and

defendants.

If courts step back from the contract-based approach for

appeal waivers, it will upset significant reliance interests—again,

for both prosecutors and defendants. First, prosecutors. A court’s

refusal to enforce a waiver as written would “deprive the

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

the plea agreement.” United States v. Boyd, 975 F.3d 1185, 1191

(11th Cir. 2020) (quotation omitted). As for defendants, ignoring

appeal waivers would offer a second chance for some (at least to

start), but that move would backfire in the end—if a defendant

cannot offer an airtight appeal waiver, a plea bargain will be much

harder to strike. See Howle, 166 F.3d at 1169. Certainty, in short,

benefits both prosecutor and defendant.

To maintain that certainty, we permit appeal waivers to

apply “not only to frivolous claims, but also to difficult and

debatable legal issues.” United States v. DiFalco, 837 F.3d 1207,

1215 (11th Cir. 2016). A defendant who signs an appeal waiver

gives up even “the right to appeal blatant error,” because the

waiver would be “nearly meaningless if it included only those

appeals that border on the frivolous.” Howle, 166 F.3d at 1169.

The same principle applies here. So even when a new

constitutional rule might provide a strong basis for collateral

attack, we enforce an appeal waiver according to its terms.

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20-14100 Opinion of the Court 7

Of course, like most rules, this one has exceptions. In United

States v. Bushert, we explained that even “judicially enforced,

knowing and voluntary sentence appeal waivers” do not bar a

“collateral § 2255 action concerning certain subjects.” 997 F.2d at

1350 n.17. But those subjects are few and sharply defined. The

most obvious is a jurisdictional defect; an appeal waiver cannot

confer jurisdiction on a court where none exists. See DiFalco, 837

F.3d at 1215. We have also carved out narrow substantive

exceptions. We will review a sentence “based on a constitutionally

impermissible factor such as race.” Bushert, 997 F.2d at 1350 n.18

(quotation omitted). And in one case, we suggested that perhaps

“extreme circumstances”—like a “public flogging” sentence—

might justify overlooking an appeal waiver as well. Howle, 166

F.3d at 1169 n.5. One last exception remains. We also allow review

of “a sentence imposed in excess of the maximum penalty provided

by statute.” Bushert, 997 F.2d at 1350 n.18 (quotation omitted).

These exceptions are crucial to King’s attempted appeal

because his plea agreement, on its face, bars his challenge. King

does not dispute the plain terms of his plea agreement: though he

admitted to forcing bank employees to turn over tens of thousands

of dollars—at gunpoint—the government dropped an armed bank

robbery charge and a conspiracy charge brought under 18 U.S.C.

§ 1951. It kept only a charge of using, carrying, or possessing a

firearm during a crime of violence under § 924(c), and substituted

in a less serious conspiracy charge. See 18 U.S.C. § 371. In

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8 Opinion of the Court 20-14100

exchange, King pleaded guilty to this lesser set of charges and

agreed to waive the right to appeal his conviction and sentence.

This deal had obvious benefits for King. His original charges

carried steep sentences—a 25-year statutory maximum for armed

bank robbery and a 20-year maximum for conspiracy under § 1951,

not to mention a possible sentence of life in prison for the § 924(c)

firearms charge. See 18 U.S.C. §§ 2113(a), 2113(d), 1951(a); Alleyne

v. United States, 570 U.S. 99, 112 (2013). Yet the guilty plea left him

with a sentence of only 135 months—less than 12 years. The bank

robbery charge was dropped entirely, and the new conspiracy

charge had a statutory maximum of five years instead of twenty.

See 18 U.S.C. §§ 371, 1951. As for the § 924(c) firearms charge, the

government agreed to limit King’s sentence to 84 months,

dramatically under the statutory maximum—life in prison. A

handwritten addition initialed by the lawyers on both sides

specifically preserved King’s right to attack any § 924(c) sentence

exceeding that number. Beyond that, he forfeited the right to

challenge any sentence within the Sentencing Guidelines.

King says that, after Davis, conspiracy to commit Hobbs Act

robbery cannot qualify as a predicate for a § 924(c) charge. True

enough, but his habeas petition does not challenge an outside-the-

Guidelines sentence or a prison term above 84 months for the

§ 924(c) charge. Those are the only grounds on which King can

appeal, and his Davis claim does not fit.

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20-14100 Opinion of the Court 9

Nor does it fall within any of our established categories of

unwaivable claims. 3 King tries to recast his Davis argument into a

claim that his sentence exceeds the statutory maximum—one that

he could bring despite his appeal waiver. According to King,

because his § 924(c) conviction was explicitly based on a conspiracy

charge that can no longer serve as a predicate, the firearm crime

for which he was convicted was “no crime at all.” And, he

concludes, no crime at all deserves no sentence at all.

This argument misinterprets the nature and scope of the

appeal-waiver exception for sentences exceeding the statutory

maximum. The “maximum penalty provided by statute”

referenced in Bushert is not a moving target that changes with new

legal developments—it is the maximum statutory penalty in effect

at the time of sentencing.

As we have explained, plea agreements must be understood

to mean what their signatories intended, and the maximum-

penalty exception fits comfortably within this framework. Rubbo,

396 F.3d at 1334; Bushert, 997 F.2d at 1350 n.18. That is because

the maximum sentence prescribed by statute forms a crucial

backdrop to any plea agreement. All plea negotiations operate on

3 Though it would not be a fit here in any event, we note that our Circuit has

never adopted a general “miscarriage of justice” exception to the rule that

valid appeal waivers must be enforced according to their terms. See Johnson,

541 F.3d at 1067–68, 1069 n.5; cf. United States v. Andis, 333 F.3d 886, 891 (8th

Cir. 2003) (en banc) (explaining that the Eighth Circuit will “refuse to enforce

an otherwise valid waiver if to do so would result in a miscarriage of justice”).

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10 Opinion of the Court 20-14100

the assumption that the statutory maximum currently in effect is

the highest penalty available, and for good reason—the parties

have no reason to expect a court to defy the law by exceeding it.

See Bushert, 997 F.2d at 1350 n.18. If a court imposes a sentence

unauthorized by statute it thus violates a fundamental assumption

underlying the plea agreement—much as it would if it convicted

the defendant of a crime to which she did not plead guilty. We

disregard a valid appeal waiver only when the court ignores one of

the “fundamental and immutable legal landmarks within which the

district court must operate regardless of the existence of sentence

appeal waivers.” Id. The statutory maximum is one such

landmark.

The same cannot be said for legal developments that may or

may not someday occur. As the Seventh Circuit recently

explained, an appeal waiver is designed “to account in advance for

unpredicted future developments in the law.” Oliver v. United

States, 951 F.3d 841, 845 (7th Cir. 2020). Both parties understand

that a higher court could later announce a new legal rule relevant

to the defendant’s conviction or sentence.

That possibility generates risk that the plea agreement may

someday be open to attack, whether on direct appeal or through

collateral review. An appeal waiver eliminates that risk for the

government; the waiver is valuable precisely because it allocates

the risk to the defendant. If a new constitutional rule favoring the

defendant is later announced, no underlying assumption of the plea

agreement or its appeal waiver has been upended. All that has

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20-14100 Opinion of the Court 11

happened is that the government’s wager has paid off—just as the

defendant’s wager pays off in the many cases in which no new rule

provides a basis for appeal. The exception for sentences that

exceed the statutory maximum honors the mutual understanding

of the parties.

We have already interpreted the meaning of this exception

in the context of appeal waivers that explicitly set it out (rather than

rely only on our caselaw recognizing the exception). In such cases,

we have held, the statutory maximum means “the upper limit of

punishment that Congress has legislatively specified for violation

of a statute.” Rubbo, 396 F.3d at 1334–35; see also United States v.

Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005). It is not the

maximum punishment permitted by a “line of decisions that was

evolving at the time.” Rubbo, 396 F.3d at 1335. Rather than

reevaluating the “maximum penalty provided by statute” each

time the Supreme Court announces a new rule, we apply the

meaning understood by both parties when the appeal waiver was

signed: the statutory maximum in effect at that time.

This Court has resisted previous attempts to “effectively

write into the contract an exception that the parties did not agree

to” by artificially broadening the statutory-maximum exception.

Johnson, 541 F.3d at 1069. In United States v. Johnson, the

defendant urged us to apply that exception to a claim based on an

untimely restitution order. We declined, explaining that the

statutory-maximum exception in Bushert targets “the imposition

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12 Opinion of the Court 20-14100

of a sentence exceeding the statutory range authorized for the

offense of conviction.” Id.

We see no reason to backtrack here. The statutory

maximum for King’s § 924(c) charge at the time of his conviction

was life in prison. See Alleyne, 570 U.S. at 112. He managed to

negotiate a far lower limit; his plea agreement preserved the right

to challenge “any sentence over 84 months with respect to” that

charge. The district court respected that limit. Because King

received a lesser sentence—one within the 84-month limit he had

negotiated—the statutory-maximum exception of Bushert does

not come into play. As in Johnson, we will not stretch that

exception beyond what it can reasonably bear.

Nor would it benefit defendants in the long run if we were

to do so. Forcing constitutional claims into the statutory-

maximum exception would render the promise of waiver virtually

meaningless, robbing defendants of a powerful bargaining tool.

Defendants who agree to waive their appeals receive the

immediate benefit of reduced penalties in return—as King’s case

shows. But if that waiver becomes contingent, whether the

defendant wishes it to be or not, a bargain will be much harder to

strike.

We are not the only circuit court to recognize the value of

enforcing appeal waivers against claims based on new

constitutional rules. To the contrary, the “principle that future

changes in law do not vitiate collateral-challenge waivers is

mainstream.” Portis v. United States, 33 F.4th 331, 335 (6th Cir.

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20-14100 Opinion of the Court 13

2022). Two of our sister circuits have recently held that such

waivers prohibit § 2255 motions based on Davis. The Seventh

Circuit explained that a Davis challenge did not “satisfy any of [its]

recognized bases for avoiding a valid collateral-attack waiver,”

including a statutory-maximum exception. Oliver, 951 F.3d at 844–

45. And the Sixth Circuit interpreted an explicit carve-out in an

appeal waiver for sentences exceeding “the statutory maximum”

to refer to “the maximum sentence at the time of sentencing, not

to maximum sentences throughout a defendant’s prison term

based on future changes to the law.” Portis, 33 F.4th at 339.

King points out, and we acknowledge, that not all circuits

have consistently followed this approach. See United States v.

Cornette, 932 F.3d 204, 210 (4th Cir. 2019) (expanding a statutory-

maximum exception to cover Johnson claims); Vowell v. United

States, 938 F.3d 260, 268 (6th Cir. 2019) (same); United States v.

Torres, 828 F.3d 1113, 1125 (9th Cir. 2016) (holding that an appeal

waiver will not bar a challenge to an “illegal” sentence). But

circuits that once considered arguments like King’s have changed

course in later decisions involving Davis claims—decisions that

support our understanding of appeal waivers. The Sixth Circuit

recently distinguished an earlier panel decision suggesting an

expansive view of the statutory-maximum exception. See Portis,

33 F.4th at 338–39. And the Ninth Circuit similarly declined to

extend an established exception, noting that while “there always

remains a chance the law could change in the defendant’s favor,”

when that defendant signs an appeal waiver, he “knowingly and

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14 Opinion of the Court 20-14100

voluntarily assumes that risk because he receives a presumably

favorable deal under existing law.” United States v. Goodall, 21

F.4th 555, 563–64 (9th Cir. 2021). We agree. And to the extent that

other jurisdictions are willing to ignore a defendant’s voluntary

choice to sign an appeal waiver simply because the law has

changed, we find their reasoning unpersuasive.

* * *

But for a few narrow exceptions, a defendant that waives the

right to collaterally attack his sentence is bound by that decision.

King’s Davis claim is no exception. We therefore AFFIRM the

district court’s order.

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20-14100 ANDERSON, J., concurring 1

ANDERSON, Circuit Judge, concurring:

I concur in the result reached in the opinion for the Court in

this case. In United States v. Bushert, this Court held that

collateral-attack waivers that defendants “knowingly and

voluntarily” enter are enforceable. 997 F.2d 1343, 1345 (11th Cir.

1993). King’s plea agreement contained a collateral-attack waiver,

and he affirmed that he understood the rights he was waiving

during his plea colloquy. However, he argues that this waiver does

not bar his appeal because, after the Supreme Court held that the

residual clause of 28 U.S.C. § 924(c) was void for vagueness in

United States v. Davis, 139 S. Ct. 2319 (2019), he is serving a

sentence beyond the statutory maximum allowed for his illegal

§ 924(c) conviction.

In Bushert, we acknowledged—in dicta—that a waiver

might not bar a defendant’s collateral attack when (1) the court

sentences the defendant based on his race, religion, or other

invidious classification or (2) it “impose[s] a penalty for a crime

beyond that which is authorized by statute.” 997 F.2d at 1350 n.18.

I agree with the opinion for the Court that the second Bushert

exception—i.e., the statutory-maximum exception—cannot

provide King relief because it only allows defendants to challenge

sentences that exceed the maximum statutory penalty in effect at

the time of sentencing. As the opinion for the Court explains,

King’s 84-month sentence for his § 924(c) conviction did not exceed

the maximum sentence authorized by § 924(c) as it existed at the

time of his sentencing. Accordingly, the statutory-maximum

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2 ANDERSON, J., concurring 20-14100

exception does not allow King to circumvent his collateral-attack

waiver. I agree that later developments in the law typically do not

obviate a collateral-attack waiver.

I write separately to address King’s argument that a

miscarriage-of-justice/actual innocence exception would allow

King to challenge his § 924(c) sentence despite his collateral-attack

waiver. See, e.g., United States v. Khattak, 273 F.3d 557, 563 (3d

Cir. 2001) (“Waivers of appeals, if entered into knowingly and

voluntarily, are valid, unless they work a miscarriage of justice.”);

United States v. Andis, 333 F.3d 886, 891–92 (8th Cir. 2003) (en

banc) (“As the miscarriage of justice exception relates to [this]

appeal, we reaffirm that in this Circuit a defendant has the right to

appeal an illegal sentence, even though there exists an otherwise

valid waiver.”). The opinion for the Court notes that we have

never adopted a general “miscarriage of justice” exception. But

assuming arguendo that this Court would adopt a miscarriage-of-

justice exception, I conclude that it would not apply here. King

admitted at his plea colloquy to robbing a bank while possessing

and brandishing a firearm. The Government originally indicted

King on three counts: (1) conspiracy to commit a Hobbs Act

robbery in violation of 18 U.S.C. § 1951; (2) armed bank robbery in

violation of §§ 2113(a), (d); and (3) use of a firearm during and in

relation to a crime of violence in violation of § 924(c). The parties

negotiated a plea, and King pled guilty to a two-count information

for (1) conspiracy to commit bank robbery in violation of 18 U.S.C.

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20-14100 ANDERSON, J., concurring 3

§ 371 and (2) use of a firearm during and in relation to a crime of

violence in violation of § 924(c).

The “crime of violence” predicate for the § 924(c) firearm

charge was the § 371 conspiracy charge, which qualified at that

time as a “crime of violence” under § 924(c)’s “residual clause.” 1

The Supreme Court recently held that § 924(c)’s “residual clause”

is unconstitutionally vague, Davis, 139 S. Ct. at 2325–36, but

Davis’s holding does not mean that King is actually innocent of his

§ 924(c) firearms conviction. He admitted at his plea colloquy that

he participated in armed bank robbery, and the Government could

have used the armed bank robbery charge from King’s original

indictment as the predicate offense for the § 924(c) firearms charge.

Even after Davis, the armed bank robbery charge would have

served as a predicate “crime of violence” offense under § 924(c)’s

elements clause.

1 Section 924(c)(3) defines “crime of violence” as follows:

(A) has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another, or

(B) that by its nature, involves a substantial risk that

physical force against the person or property of

another may be used in the course of committing the

offense.

The first definition in § 924(c)(3)(A) is the “elements clause” whereas the

second definition in § 924(c)(3)(B) is the “residual clause.” Davis, 139 S. Ct. at

2324.

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4 ANDERSON, J., concurring 20-14100

In my view, the contours of a miscarriage-of-justice

exception to the enforceability of a collateral-attack waiver would

closely track—if not mirror—the actual innocence exception to the

procedural default rule. See, e.g., Bousley v. United States, 523 U.S.

614, 623, 118 S. Ct. 1604, 1611 (1998) (stating that a petitioner’s

appeal may proceed despite procedural default if he can show his

actual innocence); Lewis v. Peterson, 329 F.3d 934, 936–37 (7th Cir.

2003) (stating that, to satisfy the actual-innocence exception to

procedural default, a petitioner must show his actual innocence

both of the crime of which he was convicted and of any more, or

equally, serious charges the Government dropped in the course of

plea bargaining). Here, King clearly cannot show he is actually

innocent of the foregone armed bank robbery charge because he

admitted to doing so during his plea colloquy. Therefore, our

conclusion that the collateral-attack waiver bars King’s appeal

would not cause a miscarriage of justice. Accordingly, I concur in

the judgment reached in the opinion for the Court.