United States v. Tyrone Hines , 134 F. App'x 351 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15261 June 9, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00136-CR-H-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRONE HINES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 9, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Tyrone Hines, a federal prisoner, appeals his sentence for being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal,
Hines argues that the district court improperly imposed a four-level enhancement
to his base offense level for possession of a firearm while committing another
felony. Although Hines signed a sentence appeal waiver, he argues that his claim
falls within an exception to the appeal waiver, namely that he may appeal his
sentence because it exceeds the applicable guideline sentencing range.
We review de novo the knowing and voluntary nature of a sentence appeal
waiver. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). A
sentence appeal waiver may be enforced, so long as it was knowingly and
voluntarily made. Id. at 1350. To prevail upon its contention that the sentencing
claim is waived, we have indicated that “[t]he government must show that either
(1) the district court specifically questioned the defendant concerning the sentence
appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear from the
record that the defendant otherwise understood the full significance of the waiver.”
Id. at 1351.
Hines does not dispute that the appeal waiver was knowing and voluntary.
Although he argues that the issue he seeks to raise falls within the exception to the
appeal waiver for a sentence that exceeds the sentencing guidelines range, Hines
actually is arguing that the district court incorrectly calculated his sentencing
guidelines range. Accordingly, we conclude that the claim is barred by the
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sentence appeal waiver. See Bushert, 997 F.2d at 1350. Moreover, Hines’s
sentence did not even exceed the guideline range that he argues should have been
applied. Accordingly, we affirm Hines’s sentence.
AFFIRMED.
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