USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10095
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC PAUL JONES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00162-VMC-TGW-1
____________________
USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 2 of 9
2 Opinion of the Court 23-10095
Before BRANCH, LAGOA, and BRASHER, Circuit Judges:
PER CURIAM:
Eric Jones, after pleading guilty to production and
possession of child pornography, was sentenced to 365 months’
imprisonment, followed by a lifetime of supervised release. He
now appeals his sentence, despite having signed a plea agreement
that contained an appeal waiver. The government moved to
dismiss the appeal based upon the appeal waiver and—because the
appeal waiver is enforceable, and Jones’s claims are not the types
that we have previously allowed to proceed despite an appeal
waiver—we grant the government’s motion to dismiss Jones’s
appeal.
I. Background
In May 2021, a federal grand jury returned an indictment
charging Jones with one count of production of child pornography,
in violation of
18 U.S.C. § 2251(a) and (e) (Count One), one count
of distribution of child pornography, in violation of
18 U.S.C.
§ 2252(a)(2) and (b)(1) (Count Two), and one count of possession
of child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B) and
(b)(2) (Count Three). Jones entered into a plea agreement with the
government, under which Jones would plead guilty to Counts One
and Three of the indictment and the government would move to
USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 3 of 9
23-10095 Opinion of the Court 3
dismiss Count Two. 1 The agreement contained the following
waiver:
The defendant . . . expressly waives the right to appeal
defendant’s sentence on any ground, including the
ground that the [sentencing c]ourt erred in
determining the applicable guidelines range pursuant
to the United States Sentencing Guidelines, except (a)
the ground that the sentence exceeds the defendant’s
applicable guidelines range as determined by the
[sentencing c]ourt pursuant to the United States
Sentencing Guidelines; (b) the ground that the
sentence exceeds the statutory maximum penalty; or
(c) the ground that the sentence violates the Eighth
Amendment to the Constitution; provided, however,
that if the government exercises its right to appeal the
sentence imposed, as authorized by
18 U.S.C.
§ 3742(b), then the defendant is released from his
waiver and may appeal the sentence as authorized by
18 U.S.C. § 3742(a).
Both Jones and the government signed the agreement and, by
signing, Jones certified that he and his counsel had read the
agreement in its entirety (or that it had been read to Jones) and that
Jones fully understood the terms of the agreement. Jones also
1 According to the agreement, Count One carried a mandatory minimum term
of imprisonment of 15 years up to 30 years, a maximum fine of $250,000, at
least a 5-year term of supervised release, and a special assessment of $100; and
Count Three carried a maximum sentence of 20 years’ imprisonment, a
$250,000 fine, at least 5 years of supervised release, and a $100 special
assessment.
USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 4 of 9
4 Opinion of the Court 23-10095
initialed each page of the agreement to indicate that he understood
its operative terms.
At the change of plea hearing, Jones confirmed to the
magistrate judge that he had signed, initialed, and understood the
plea agreement, denied that he had any questions about the
agreement, and confirmed that the factual basis underlying his
offenses as set forth in the plea agreement was correct. The
magistrate judge then explained the plea agreement’s appeal
waiver, as well as exceptions to the waiver, and Jones confirmed
that he understood the waiver and that he had freely and
voluntarily agreed to it. After finding that Jones was competent
and capable of entering an informed plea, the magistrate judge
adjudicated Jones guilty and entered a report and recommendation
recommending that the district court accept Jones’s plea. The
district court later did so.
Prior to sentencing, the government moved for a three-level
reduction in Jones’s total offense level for substantial assistance to
law enforcement pursuant to U.S.S.G. § 5K1.1. Before hearing
argument on the motion at the sentencing hearing, the district
court stated that Jones’s offenses were “some of the most serious”
it had overseen and took the offenses “very seriously.” The district
court ultimately granted the government’s motion and decreased
Jones’s offense level by three. 2
2 The district court determined that, based on an offense level of 43 and a
criminal history category of I, Jones’s advisory guideline range was 600
months’ imprisonment. After the district court granted the government’s
USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 5 of 9
23-10095 Opinion of the Court 5
The district court then stated that it believed cases such as
Jones’s were “horrific,” and doubted whether “certain people
[could] change when it comes to these offenses.” The district court
went on, stating that it had “imposed very significant sentences in
these crimes” in the past, being concerned “not just [about]
punishment,” but having the “prevailing concern [about]
protecting the public.” “What it [came] down to” for the district
court is that “they don’t change.” Finally, the district court
announced Jones’s sentence and informed Jones that his
cooperation with the government had spared him from a life
sentence, emphasizing that it had imposed a life sentence on
“virtually everybody” who had previously appeared before the
district court after committing similar crimes.
Jones now appeals the judgment and sentence, and the
government moves to dismiss the appeal pursuant to the appeal
waiver in the plea agreement. Jones argues that the appeal waiver
should not be enforced because, while he waived his right to appeal
his sentence on legal grounds, he did not knowingly and voluntarily
waive his right to appeal where the district court utilized
unconstitutional and biased reasoning. Specifically, Jones points to
the district court’s statements that “they,” i.e., individuals who
produce and possess child pornography, “don’t change,” and argues
that the district court improperly imputed its own biases onto him.
Jones also argues that the district court committed a substantive
motion for a reduction of the base offense level, Jones’s guideline range was
reduced to 292 to 365 months’ imprisonment.
USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 6 of 9
6 Opinion of the Court 23-10095
error by giving significant weight to an improper factor in
imposing his sentence, namely its generalized assumption that
criminals like Jones “don’t change.”
The government has moved to dismiss Jones’s appeal on the
grounds that the district court did not violate Jones’s due process
rights, that Jones knowingly and voluntarily waived his right to
appeal, and that the exceptions to the appeal waiver do not apply
to Jones’s case.
II. Discussion
“We review the validity of a sentence appeal waiver de
novo.” United States v. Johnson,
541 F.3d 1064, 1066 (11th Cir. 2008).
A sentence appeal waiver will be enforced if it was made knowingly
and voluntarily. United States v. Bushert,
997 F.2d 1343, 1351 (11th
Cir. 1993). To establish that the waiver was made knowingly and
voluntarily, the government must show either that: (1) the district
court specifically questioned the defendant about the waiver during
the plea colloquy; or (2) the record makes clear that the defendant
otherwise understood the full significance of the waiver.
Id.
Our “touchstone for assessing” whether a defendant entered
a waiver knowingly and voluntarily is whether the district court
“clearly convey[ed] to [the defendant] that he was giving up his
right to appeal under most circumstances.” United States v. Boyd,
975
F.3d 1185, 1192 (11th Cir. 2020) (alterations and emphasis in
original); see also United States v. Weaver,
275 F.3d 1320, 1323–24,
1333 (11th Cir. 2001) (holding that an appeal waiver was valid
where it was “referenced” at the plea hearing and where the district
USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 7 of 9
23-10095 Opinion of the Court 7
court established that the defendant had read and understood
“every page and every word” of the plea agreement).
An appeal waiver may waive “the right to appeal difficult or
debatable legal issues or even blatant error.” Boyd, 975 F.3d at 1191
n.5 (quoting United States v. Grinard-Henry,
399 F.3d 1294, 1296 (11th
Cir. 2005)). Consequently, a defendant may waive his right to
appeal constitutional and non-constitutional issues by executing a
valid sentence appeal waiver. See United States v. Bascomb,
451 F.3d
1292, 1297 (11th Cir. 2006). However, a sentence appeal waiver “is
not an absolute bar to appellate review;” despite a valid appeal
waiver, review may be available when the defendant was
“sentenced entirely at the whim of the district court,” above the
statutory maximum, or based on a constitutionally impermissible
factor, such as race. Johnson,
541 F.3d at 1068 (quotation omitted).
We have also noted that extreme circumstances, “for instance, if
the district court had sentenced [the defendant] to a public
flogging,” may implicate due process and require that the
defendant be allowed to appeal despite agreeing to a valid appeal
waiver. United States v. Howle,
166 F.3d 1166, 1169 n.5 (11th Cir.
1999).
Here, the government’s motion to dismiss Jones’s appeal is
due to be granted. Jones initialed each page of the plea agreement
and signed it at the end, certifying that he had read every page of
the agreement and understood the terms contained therein.
During the plea colloquy, the magistrate judge clearly explained
the appeal waiver and confirmed that Jones understood it, had
USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 8 of 9
8 Opinion of the Court 23-10095
signed and initialed it, and did not have any questions about it. The
magistrate judge then found that Jones fully understood the appeal
waiver and thus knowingly and voluntarily waived his right to
appeal as provided in the plea agreement. The appeal waiver is
therefore valid and enforceable against Jones. Bushert,
997 F.2d at
1351.
Jones’s appeal does not fall within any of the exceptions
contained in the waiver: (1) his sentence was within his guideline
range, as the district court calculated at sentencing; (2) his sentence
did not exceed the statutory maximum; and (3) the government did
not appeal. As for Jones’s argument that the district court relied on
unconstitutional reasoning in imposing his sentence, there is no
indication that Jones was “subjected to the unfettered whim of the
district court, or punished on the basis of a constitutionally
impermissible factor such as race.” Johnson,
541 F.3d at 1068–69.
The sort of constitutional error Jones challenges here falls within
the sorts of claims defendants may negotiate away during the
course of plea negotiations and, accordingly, an appeal waiver to
which the parties agreed can bar such an appeal. See Bascomb, 451
F.3d at 1297. Jones’s second argument fails for the same reason—
his claim that the district court gave an improper factor significant
weight in imposing his sentence falls outside the scope of the
waiver’s exceptions and does not amount an extreme circumstance
implicating due process. Johnson,
541 F.3d at 1068; Howle,
166 F.3d
at 1169 n.5.
USCA11 Case: 23-10095 Document: 25-1 Date Filed: 08/24/2023 Page: 9 of 9
23-10095 Opinion of the Court 9
III. Conclusion
The appeal waiver contained in Jones’s plea agreement is
valid and enforceable and Jones’s claims do not fall within the
waiver’s exceptions, nor do they constitute the type of issues that
we have permitted to proceed despite the presence of a valid appeal
waiver. We therefore grant the government’s motion to dismiss.
THE GOVERNMENT’S MOTION IS GRANTED AND
THE APPEAL IS DISMISSED.
