USA v. Tevin Souffranc, No. 22-13013 (11th Cir. 2023)
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USCA11 Case: 22-13013 Document: 36-1 Date Filed: 10/19/2023 Page: 1 of 12 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-13013 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plainti -Appellee, versus TEVIN SHANE SOUFFRANC, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:21-cr-60069-RKA-1 ____________________ USCA11 Case: 22-13013 2 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 2 of 12 22-13013 ____________________ No. 22-13044 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plainti -Appellee, versus TEVIN SHANE SOUFFRANC, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:22-cr-60064-RKA-1 ____________________ Before LAGOA, ABUDU, and ANDERSON, Circuit Judges. PER CURIAM: These consolidated cases are before us on the government’s motions to dismiss Tevin Souffranc’s direct appeals based on the sentence appeal waivers within his plea agreements. The USCA11 Case: 22-13013 22-13013 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 3 of 12 3 government alternatively moves this Court for summary affirmance. Upon review of the record, we grant the government’s motions to dismiss, and deny as moot the government’s motions for summary affirmance. I. FACTUAL BACKGROUND & PROCEDURAL HISTORY A. Southern District of Florida, Case No. 22-13013 In March 2021, a federal grand jury in the Southern District of Florida returned an indictment charging Sou ranc with one count of attempted carjacking, two counts of substantive carjacking, three counts of brandishing a rearm during a crime of violence, and one count each of kidnapping, bank robbery, attempted kidnapping, and attempted bank robbery (herein after, “S.D. Fla. case”). In April 2022, Sou ranc entered into a plea agreement with the government in which he agreed to plead guilty to kidnapping, bank robbery, carjacking, and two counts of brandishing a rearm during a crime of violence, in exchange for, among other things, the government dismissing the remaining charges. Regarding the terms of imprisonment, the plea agreement explained that: the two charges of brandishing a rearm during a crime of violence each carried a minimum term of imprisonment of seven years and maximum term of life imprisonment; the kidnapping charge carried a maximum term of life imprisonment; the bank robbery charge carried a maximum term of imprisonment of twenty years; and the carjacking charge carried a maximum term USCA11 Case: 22-13013 4 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 4 of 12 22-13013 of imprisonment of fteen years. It additionally informed Sou ranc that the two counts of brandishing a rearm during a crime of violence had to run consecutively to each other and the other charges, which would result in a minimum consecutive sentence of fourteen years. The plea agreement also included an appeal waiver which informed Sou ranc that he was waiving his right to appeal any sentence imposed, any restitution order, or the manner in which the sentence was imposed unless the sentence exceeded the maximum permitted by law or was the result of an upward departure or variance from the advisory guideline range. The plea agreement also informed Sou ranc that his appeal waiver did not impact the government’s right to appeal and explained that, should the government appeal, Sou ranc would be released from the waiver. Additionally, the plea agreement explained that Sou ranc was waiving his right to assert any claim that the statutes to which he was pleading guilty were unconstitutional or that his admitted conduct was outside the scope of those criminal statutes. B. Middle District of Florida, Case No. 22-13044 In February 2022, the government led an information in the Middle District of Florida charging Sou ranc with one count of bank robbery and one count of attempted bank robbery. Sou ranc waived an indictment in that case and consented to transfer the case to the Southern District of Florida to enter his plea and be sentenced. (“M.D. Fla. case”). USCA11 Case: 22-13013 22-13013 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 5 of 12 5 In April 2022, Sou ranc entered a plea agreement wherein he agreed to plead guilty to both counts in the M.D. Fla. case. In exchange, the government agreed to recommend that the district court sentence him concurrently with the sentences it imposed in the S.D. Fla. case. Again, the plea agreement informed Sou ranc of the maximum terms of imprisonment he faced on each count— twenty years’ imprisonment. It also included the same appeal wavier from the S.D. Fla. case. C. Consolidated Proceedings Thereafter, the S.D. Fla. case and the M.D. Fla. case proceeded together. The district court then held a change of plea hearing for both cases. Under oath, Sou ranc testi ed that he was 28 years old, completed school through his freshman year of college, read and wrote English, and was a citizen of the United States. He stated that he had never been treated for addiction and was not under the in uence of any drugs or alcohol. He explained that he was diagnosed with bipolar disorder and post-traumatic stress disorder in 2019 and was receiving ongoing treatment, and that he took two prescription medications for his bipolar disorder that he had not yet taken that day. Sou ranc expressed that he did not su er from any physical or mental condition that would prevent him from understanding everything during the plea colloquy. As to the M.D. Fla. case, Sou ranc con rmed that he understood that he had the right to have a grand jury review the charges against him and return an indictment, but he otherwise waived that right when he waived the indictment. He con rmed that he USCA11 Case: 22-13013 6 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 6 of 12 22-13013 understood the basis of the charges against him as outlined in the information for the M.D. Fla. case and in the indictment for the S.D. Fla. case. He stated that he spoke to his attorney about both cases, including reviewing the charges and discussing possible defenses or strategies, and con rmed that he was satis ed with his lawyer. Next, the district court asked Sou ranc if he had reviewed the plea agreements with his lawyer and understood them, and Sou ranc con rmed that he had done so and had no questions. He also stated that he understood that he was pleading guilty to the counts outlined in both plea agreements. He acknowledged that, in exchange for his guilty plea, the government agreed to dismiss the remaining counts in his S.D. Fla. case. He also con rmed that he understood that his sentence would be computed using the United States Sentencing Guidelines, and he had discussed the guidelines with his attorney. The district court informed Sou ranc that the guidelines were advisory and that the court was permitted to impose a sentence within, below, or above the guidelines range. It emphasized that it could impose a sentence on Sou ranc that was outside the high end of the guideline’s range, and that Sou ranc could not withdraw his guilty plea if that occurred, which Sou ranc con rmed he understood. The district court discussed the minimum and maximum terms of imprisonment Sou ranc faced in both cases and emphasized that it could impose all penalties concurrent to or consecutive with each other. It also informed Sou ranc that two charges in the S.D. Fla. case had to run consecutive to each other and all other USCA11 Case: 22-13013 22-13013 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 7 of 12 7 counts. Sou ranc a rmed that he understood the mandatory minimum and maximum terms of imprisonment he faced. As to the appeal waiver, the district court informed Sou ranc that both plea agreements included appeal waivers that prohibited him from appealing the sentence that it imposed or the manner in which it imposed the sentence. The court explained to Sou ranc that he was waiving his right to appeal the sentence, including the terms of imprisonment, supervised release, nes, restitution, forfeitures, and special assessments. The court also explained to Sou ranc the three narrow exceptions to his appeal waiver that would allow him to appeal his sentences. Sour ranc con rmed his understanding of the entirety of the appeal waivers and the exceptions. He also con rmed that no one forced or threatened him to give up his appellate rights or made any promises to him, other than what was in the plea agreement, to convince him to waive his appellate rights, and he con rmed that he discussed his appeal waivers with his attorney. Sou ranc also con rmed that he was waiving his appellate rights in exchange for the government’s o ers in the plea agreements because he believed it was the best outcome in his case. Ultimately, the district court found that Sou ranc knowingly, intentionally, and voluntarily waived his right to appeal; that his appeal waiver was not made due to threats of force or coercion, inappropriate promises or guarantees; and the waiver was made after adequate consultation with counsel. The district court further USCA11 Case: 22-13013 8 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 8 of 12 22-13013 informed Sou ranc of the trial rights that he was waiving by pleading guilty, which Sou ranc stated that he understood. The government set forth the factual basis for the charges in both cases. Following a small correction, Sou ranc agreed that the factual basis was true and that the government could prove his guilt beyond a reasonable doubt as to the charged o enses. Sou ranc pled guilty to all counts included in the plea agreements, and the district court adjudicated him guilty after nding that he was competent and capable of entering an informed plea and the plea was supported by an independent factual basis. Before sentencing, a probation o cer prepared a presentence investigation report (“PSI”), which calculated Sou ranc’s guideline sentences. The PSI calculated a total o ense level of 32 and a criminal history category of V, putting the guideline sentencing range as 188 to 235 months’ imprisonment for all charges in both cases, except the two rearms o enses in the S.D. Fla. case. As to the rearm o enses, Sou ranc’s minimum term of imprisonment was seven years, his maximum term was life, and each had to run consecutively to each other and any other term of imprisonment. Sou ranc objected, in relevant part, to the two-level enhancement he received for injuring the victim of his carjacking. At sentencing, the government opposed Sou ranc’s objection and presented the victim to testify about the injuries she sustained. Ultimately, the district court overruled Sou ranc’s objection because USCA11 Case: 22-13013 Document: 36-1 22-13013 Date Filed: 10/19/2023 Opinion of the Court Page: 9 of 12 9 the victim’s testimony was undisputed, and it believed the victim’s testimony was true as to the nature and extent of her injuries. The district court then determined that Sou ranc’s o ense level was 32 and his criminal history category was V, resulting in a guideline sentencing range of 188 to 235 months’ imprisonment. The probation o cer noted that, in addition to the guideline range, Sou ranc faced an additional consecutive 168 months’ imprisonment. The court ultimately sentenced Sou ranc to a total of 360 months’ imprisonment. The sentence consisted of 192 months as to the kidnapping, bank robbery, and carjacking charges, to be served concurrently with each other, and eighty-four months as to each rearm o ense, to run consecutively to each other and to the kidnapping, bank robbery, and carjacking charges. As to M.D. Fla. Case, the court imposed 192 months’ imprisonment for each count, to run concurrently with the sentences for the S.D. Fla. case’s kidnapping, bank robbery, and carjacking charges, and consecutively to the S.D. Fla. case’s rearm o enses. The district court also imposed three years of supervised release as to all counts, set to run concurrently. Finally, the district court denied Sou ranc’s request for a variance, citing Sou ranc’s violent criminal history, speci cally of violence against women, and the victims in the present case. Despite his appeal waivers, these appeals followed. II. ANALYSIS We review de novo a sentence appeal waiver’s validity. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence USCA11 Case: 22-13013 10 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 10 of 12 22-13013 appeal waiver will be enforced if it was made knowingly and voluntarily. Id. To establish that the waiver was made knowingly and voluntarily, the government must show either that: “(1) the district court speci cally questioned the defendant about the waiver; or (2) the record makes clear that the defendant otherwise understood the full signi cance of the waiver.” Id. (citing United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)). “[T]he touchstone for assessing” whether a defendant entered a waiver knowingly and voluntarily is whether the district court “clearly conveyed 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) (brackets and emphasis omitted) (quoting Bushert, 997 F.2d at 1352-53). An appeal waiver may waive “the right to appeal di cult or debatable legal issues or even blatant error.” Id. at 1191 n.5 (internal quotation marks omitted) (quoting United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005)). Further, 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 waiver.” United States v. Bascomb, 451 F.3d 1292, 1296 (11th Cir. 2006). However, a sentence appeal waiver does not completely bar appellate review because review may be available despite a valid appeal waiver when the defendant was “sentenced entirely at the whim of the district court,” above the statutory maximum, or based on a constitutionally impermissible factor. Johnson, 541 F.3d USCA11 Case: 22-13013 22-13013 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 11 of 12 11 at 1068 (internal quotation marks omitted) (quoting Bushert, 997 F.2d at 1350). We have also noted that extreme circumstances, “for instance, if the district court had sentenced [the defendant] to a public ogging,” may implicate due process and require that the defendant be allowed to appeal despite a valid appeal waiver. Id. (internal quotation marks omitted) (quoting United States v. Howle, 166 F.3d 1166, 1169 n.5 (11th Cir. 1999)). Nevertheless, a defendant is “free to bargain away his right to raise constitutional issues” on appeal. Bascomb, 451 F.3d at 1297. Here, Sou ranc appeals his convictions despite his appeal waivers, arguing that: the district court violated his due process rights by relying on the victim’s statements during the sentencing hearing; carjacking is not a qualifying crime of violence under 18 U.S.C. § 924(c); the district court did not adequately explain his appeal waiver; and that, regardless of the appeal waiver, this Court should review his challenges in the interest of justice. The government moves to dismiss Sou ranc’s appeals due to his appeal waivers, and alternatively moves for summary a rmance. We grant the government’s motions to dismiss because Sou ranc knowingly and voluntarily entered into the appeal waivers contained within his plea agreements and none of his arguments fall within the narrow exceptions that allow him to appeal. The district court extensively examined Sou ranc to ensure he understood the terms and consequences of the appeal waivers. Sou ranc’s responses clearly indicated that he understood the appeal waivers and intended to enter into the plea agreements. USCA11 Case: 22-13013 12 Document: 36-1 Date Filed: 10/19/2023 Opinion of the Court Page: 12 of 12 22-13013 Johnson, 541 F.3d at 1066; Boyd, 975 F.3d at 1192. Sou ranc’s challenges against the district court’s consideration of the victim’s statements during sentencing and his carjacking conviction fall directly within the types of issues he knowingly and voluntarily agreed he could not raise on appeal. Therefore, because (1) Sou ranc’s sentences fall within the guidelines range, (2) the district court did not sentence him above the statutory maximum, and (3) the government did not appeal, Sou ranc’s challenges to his sentences fall outside the enumerated exceptions to his appeal waiver. Thus, the government’s motions to dismiss based on the appeal waiver are due to be granted, and we have no need to consider the government’s alternative motions for summary a rmance. III. CONCLUSION For the reasons set forth above, we GRANT the government’s motions to dismiss Sou ranc’s appeals, and DENY AS MOOT the government’s motions for summary a rmance. 1 The government also moved to stay the briefing schedule, which is denied as moot. 1
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