USA v. Bacari McCarthren

Filing

Supreme Court remand opinion issued by court. Decision: Dismissed. Opinion type: Non-Published. Opinion method: Per Curiam. Government's motion to dismiss pursuant to sentence appeal waiver is GRANTED.

Case: 13-13523

Date Filed: 11/21/2017

Page: 1 of 6

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13523
Non-Argument Calendar
________________________
D.C. Docket No. 7:12-cr-00036-HL-TQL-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BACARI MCCARTHREN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 21, 2017)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 13-13523

Date Filed: 11/21/2017

Page: 2 of 6

Bacari McCarthren pled guilty in 2013 to possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a). The district court sentenced him to the
statutory maximum penalty for that offense, 20 years of imprisonment, after
applying the career-offender enhancement under the United States Sentencing
Guidelines, see U.S.S.G. § 4B1.1.

We affirmed McCarthren’s conviction and

sentence on direct appeal after his counsel filed a no-merit brief pursuant to Anders
v. California, 386 U.S. 738 (1967). See United States v. McCarthren, 575 Fed.
App’x 873 (11th Cir. 2014).

The Supreme Court vacated that decision and

remanded the case to us for further consideration in light of Johnson v. United
States, 576 U.S. ___, 135 S. Ct. 2551 (2015). 1
On appeal, McCarthren maintains that the career-offender enhancement was
incorrectly applied because, in his view, his prior conviction for aggravated battery
under Florida Statute § 784.045(1)(a) no longer qualifies as a “crime of violence.”
In response, the government has filed a motion to dismiss arguing that
McCarthren’s appeal is barred by the sentence-appeal waiver in his plea
agreement.

After careful review, we agree with the government and dismiss

McCarthren’s appeal.
1

McCarthren concedes that, as a result of the Supreme Court’s subsequent decision in
Beckles v. United States, 137 S. Ct. 886 (2017) (holding that Johnson did not apply to the
advisory guidelines), he no longer has a challenge based on Johnson. Instead, he attempts to
bring a different challenge based on Mathis v. United States, 136 S. Ct. 2243 (2016). Even
assuming we can construe the remand order to cover this new claim, however, McCarthren’s
valid sentence-appeal waiver bars him from raising it on appeal.
2

Case: 13-13523

Date Filed: 11/21/2017

Page: 3 of 6

McCarthren’s plea agreement contains a limited waiver of his appellate
rights. McCarthren “waive[d] any right to an appeal or other collateral review of
[his] sentence in any court,” unless one of two exceptions applied. The exceptions
included the following: (1) if the district court imposed a sentence that exceeded
the advisory guideline range; and (2) if the government appealed McCarthren’s
sentence.
McCarthren concedes that his current challenge to the career-offender
enhancement does not fit within one of the exceptions to the sentence-appeal
waiver. The sentence did not exceed the advisory guideline range of 210 to 240
months of imprisonment, and the government has not appealed his sentence.
Nor does McCarthren dispute that the government has established that he
knowingly and voluntarily agreed to the sentence-appeal waiver. We will enforce
an appeal waiver that was made knowingly and voluntarily. United States v.
Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006); United States v. Bushert, 997
F.2d 1343, 1350–51 (11th Cir. 1993). An appeal waiver will be enforced if (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. Bushert, 997 F.2d at 1351. Here, the district court
specifically questioned McCarthren about the waiver during the plea colloquy, and

3

Case: 13-13523

Date Filed: 11/21/2017

Page: 4 of 6

he indicated that he understood it. Accordingly, McCarthren’s appeal waiver is
valid and enforceable.
Nevertheless, McCarthren maintains that an otherwise valid sentence-appeal
waiver should be unenforceable if it will result in a “miscarriage of justice.”
McCarthren contends that such a miscarriage of justice results when, as here, the
defendant receives the statutory maximum sentence because of an erroneous
career-offender enhancement.

He asserts that, without the career-offender

enhancement, his advisory guideline range would have been no higher than 92 to
115 months of imprisonment, less than half of the range under which he was
sentenced.
“We have consistently enforced knowing and voluntary appeal waivers
according to their terms.” Bascomb, 451 F.3d at 1292. Where the terms of the
waiver apply, “[a]n appeal waiver includes the waiver of the right to appeal
difficult or debatable legal issues or even blatant error.” United States v. GrinardHenry, 399 F.3d 1294, 1296 (11th Cir. 2005); United States v. Howle, 166 F.3d
1166, 1169 (11th Cir. 1999) (“While it may appear unjust to allow criminal
defendants to bargain away meritorious appeals, such is the necessary consequence
of a system in which the right to appeal may be freely traded.”). Even “a vigorous
dispute about an issue during the sentencing proceedings does not preserve that
issue for appeal when the terms of the appeal waiver do not except it from the
4

Case: 13-13523

Date Filed: 11/21/2017

Page: 5 of 6

waiver.” Bascomb, 451 F.3d at 1296. Plus, the fact that a defendant’s challenge is
based on a Supreme Court decision that was issued after the defendant’s
sentencing does not alone except the challenge from the waiver. See United States
v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005) (holding that the defendant’s
appeal waiver applied to a challenge based in part on United States v. Booker, 543
U.S. 220 (2005), which was issued after the defendant’s sentencing).
Nevertheless, we have recognized that “an effective waiver is not an
absolute bar to appellate review.” United States v. Johnson, 541 F.3d 1064, 1068
(11th Cir. 2008).

In Bushert, for example, we noted that “there are certain

fundamental and immutable legal landmarks within which the district court must
operate regardless of the existence of sentence appeal waivers.” Bushert, 997 F.2d
at 1350 n.18. Thus, we may decline to enforce a waiver where the sentence
exceeds the statutory maximum or is based on a constitutionally impermissible
factor such as race or religion. Id. And “[i]n extreme circumstances—for instance,
if the district court had sentenced [a defendant] to a public flogging—due process
may require that an appeal be heard despite a previous waiver.” Howle, 166 F.3d
at 1169 n.5.
Here, however, McCarthren’s challenge does not implicate such
“fundamental and immutable legal landmarks.” Bushert, 997 F.2d at 1350 n.18.
He presents a challenge to the calculation of his guideline range and the application
5

Case: 13-13523

Date Filed: 11/21/2017

of the career-offender guideline.

Page: 6 of 6

That guideline was one that, according to

McCarthren’s counsel’s comments at the plea colloquy, McCarthren knew could
be an issue at sentencing, yet he agreed to the appeal waiver, anyway.
McCarthren’s sentence was below the statutory maximum and he does not assert
that his sentence was based on a constitutionally impermissible factor. See id.
And finally, even if McCarthren had not waived his right to appeal, the premise of
McCarthren’s challenge on appeal—that the Supreme Court’s decision in Mathis v.
United States, 136 S. Ct. 2243 (2016), abrogated our decision in Turner v. Warden
Coleman FCI (Medium), 709 F.3d 1328, 1341–42 (11th Cir. 2013)—has been
rejected by a panel of this Court, see United States v. Golden, 854 F.3d 1256, 1257
(11th Cir. 2017) (holding that Turner remains binding precedent in this Circuit
notwithstanding Mathis and Descamps v. United States, 133 S. Ct. 2276 (2013)),
and we are bound by that ruling, see, e.g., United States v. Steele, 147 F.3d 1316,
1317-18 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a panel
cannot overrule a prior one's holding even though convinced it is wrong.”). For
these reasons, no extreme circumstances exist here that would preclude
enforcement of the plain terms of the sentence-appeal waiver.
GRANT the government’s motion to dismiss.

6

We therefore