United States v. James T. Byrne , 440 F. App'x 716 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12712 and No. 10-15047 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 6, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cr-14059-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES T. BYRNE,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(September 6, 2011)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
James Byrne appeals his conviction and sentence for producing child
pornography. 18 U.S.C. § 2251(a). Byrne challenges the denial of his motion to
withdraw his guilty plea and the enhancement of his sentence. Although this
Court invited Byrne and the United States to address whether the district court had
jurisdiction to impose restitution, the parties have not discussed the issue, and
neither will we. We affirm.
The district court did not abuse its discretion by denying Byrne’s motion to
withdraw his guilty plea. Byrne’s plea agreement and the plea colloquy establish
that Byrne was aided by counsel in reaching a decision to plead guilty, he
understood his constitutional rights, and he knowingly and voluntarily waived
those rights. Byrne, who served more than 20 years as a deputy chief clerk in a
New York court, admitted during the plea colloquy that the factual basis appended
to his plea agreement “accurately set[] forth the facts” of his crime. Byrne argues
that the factual basis was revised before the plea colloquy and “he was unclear as
to exactly what he had signed,” but the parties revised only one paragraph about
two “additional images depicting [the victim] engaged in sexual activity,” which
left undisturbed Byrne’s admissions about “engaging in sexual activity with [the
victim], . . . for the purpose of producing visual images of that sexual activity” and
producing “over 300 images of child pornography involving the minor child,”
including two images on which Byrne’s “face [was] visible as he perform[ed] oral
sex on [the victim].” Byrne complains about the hurried pace of the plea colloquy,
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but the magistrate judge instructed Byrne to stop the proceedings any time that
there was “something that [he] [did] not understand” or if he “need[ed] to . . .
consult with [his] attorney.” Byrne failed to provide any “fair and just reason for
requesting” to withdraw his guilty plea. Fed. R. Crim. P. 11(d)(2)(B).
Byrne argues that the district court incorrectly applied three enhancements
to his sentence, but these arguments are barred by the appeal waiver in Byrne’s
plea agreement. The plea agreement provided that Byrne waived the right to
appeal his sentence “unless the sentence exceed[ed] the maximum permitted by
statute or [was] the result of an upward departure from the guideline range that the
[district] [c]ourt establishe[d] at sentencing,” and Byrne twice acknowledged those
limitations during the plea colloquy. Byrne knowingly and voluntarily waived the
right to appeal his sentence. See United States v. Weaver, 275 F.3d 1320, 1333
(11th Cir. 2001).
We AFFIRM the denial of Byrne’s motion to withdraw his guilty plea.
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