Case: 18-11991 Date Filed: 02/07/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11991
Non-Argument Calendar
________________________
D.C. Docket No. 1:04-cr-00143-ODE-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDNECDIA (TINA) JOHNSON,
a.k.a. Tina Smith,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 7, 2019)
Before WILLIAM PRYOR, GRANT and ANDERSON, Circuit Judges.
PER CURIAM:
The government has filed a motion to dismiss Johnson’s appeal, arguing that
we lack jurisdiction to consider it because (1) her time to appeal the restitution
amount has long since passed and (2) her appeal is precluded by the limited appeal
Case: 18-11991 Date Filed: 02/07/2019 Page: 2 of 3
waiver in her plea agreement. However, the failure to file a timely notice of appeal
does not deprive us of jurisdiction. United States v. Lopez,
562 F.3d 1309, 1313
(11th Cir. 2009). In any event, Johnson timely appealed from the district court’s
2018 order denying her pro se motion to adjust her restitution.
Fed. R. App. P. 4(b)(1)(A)(i).
Nevertheless, in her brief on appeal, Johnson largely raises issues
challenging the district court’s initial award of restitution in 2004, not the district
court’s order denying her pro se motion in 2018, and so her arguments challenging
the 2018 order have been abandoned. United States v. Jernigan,
341 F.3d 1273,
1283 n.8 (11th Cir. 2003). As for the arguments that she does raise on appeal,
which focus on the district court’s 2004 award of restitution, we are required to
dismiss them as untimely pursuant to the government’s request. Lopez,
562 F.3d at
1312-14.
To the extent that Johnson’s arguments on appeal can be construed to
challenge the district court’s denial of her pro se motion, we dismiss Johnson’s
appeal pursuant to her valid appeal waiver.1 We have held that a valid appeal
waiver may bar a challenge to restitution, United States v. Johnson,
541 F.3d
1
Contrary to the government’s assertions, a valid appeal waiver does not deprive us of
jurisdiction but does require that we dismiss an appeal prior to reaching its merits. See, e.g.,
United States v. Howles,
166 F.3d 1166, 1169 (11th Cir. 1999) (declining to reach the merits of
an appeal due to a valid appeal waiver).
2
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1064, 1068 (11th Cir. 2008), and we have also previously determined that
Johnson’s appeal waiver is valid and enforceable, making it the law of the case, In
re Lambrix,
776 F.3d 789, 793 (11th Cir. 2015) (per curiam). Johnson’s limited
appeal waiver does not contain an exception relevant to her appeal. We therefore
enforce Johnson’s limited appeal waiver with regard to any timely issues raised by
Johnson.
Accordingly, the Government’s motion to dismiss this appeal in part as
untimely and in part pursuant to the appeal waiver in Appellant’s plea agreement is
GRANTED.
3
