FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 14, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13932

Non-Argument Calendar

________________________

D. C. Docket No. 04-00215-CR-T-E

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

BENNIE BASCOMB, JR., 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(June 14, 2006)

Before CARNES, PRYOR and HILL, Circuit Judges.

CARNES, Circuit Judge:

Bennie Bascomb, Jr. appeals the 120-month sentence imposed after he
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pleaded guilty to violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §

924(c)(1)(A). Bascomb was sentenced in accordance with the mandatory

minimums set out by those statutes. As part of his plea agreement, Bascomb

entered a voluntary and knowing waiver of his right to appeal, and the grounds of

this appeal were included in that waiver. On the basis of that waiver, we grant the

government’s motion to dismiss Bascomb’s appeal. 

I.

Bascomb’s conviction resulted from his cultivation of marijuana plants at

his home and his possession of a .22 caliber pistol at the time of his arrest. 

Bascomb’s wife was also charged with manufacturing (the term used in the

statute) marijuana. The government offered to drop all charges against his wife if

Bascomb would plead guilty, admit that he had been growing more than one

hundred marijuana plants and that he had possessed the handgun, and agree to an

appeal waiver. Bascomb agreed to do so. Those violations triggered mandatory

five-year sentences that must run consecutively. See 21 U.S.C. § 841; 18 U.S.C. §

924.

Bascomb does not dispute the knowing and voluntary nature of his appeal

waiver, and the transcript of his change of plea proceedings shows that the

magistrate judge specifically questioned him about the waiver, receiving
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assurances that Bascomb understood what he was doing; defense counsel also

acknowledged the waiver. At the sentencing proceedings, the district court 

indicated that Bascomb would have received a shorter sentence but for the

mandatory minimums required by statute. The court rejected Bascomb’s

contention that the sentence was cruel and unusual but agreed that it was

unreasonable and encouraged Bascomb to appeal it. The court did so

notwithstanding the fact that the issue was squarely covered by the terms of the

appeal waiver, which expressly ruled out an appeal on any ground except

ineffective assistance of counsel and prosecutorial misconduct.

Bascomb contends that the sentence violates the Eighth Amendment

because it is cruel and unusual. The government contends that his appeal should

be dismissed based on Bascomb’s agreement to waive his right to appeal. 

Bascomb argues that because the government did not object at sentencing to his

stated intention to appeal, or to the district court’s encouragement of the appeal, it

has acquiesced to this appeal or waived the waiver. Bascomb also argues that he

should not be bound to any agreement waiving his right to challenge an

unconstitutional sentence.

II.

We decide the effectiveness of the appeal waiver now because requiring the
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government to file a brief where there has been a valid appeal waiver undermines

the interests of both the government and defendants generally. The reason:

As we explained in [United States v.]Bushert, plea

agreements containing such waivers save the government

time and money by conveying an immediate and tangible

benefit in the saving of prosecutorial resources. 997

F.2d at [1343, 1347 (11th Cir. 1993)] A sentence appeal

waiver is also of value to a defendant, because it is

another chip the defendant can bring to the bargaining

table and trade for additional concessions from the

government. See id. Requiring the government to file an

appeal brief even though there is an appeal waiver

substantially diminishes the value of the waiver to the

government, and by extension to defendants who are

willing to bargain away their right to appeal the

sentence. Accordingly, where it is clear from the plea

agreement and the Rule 11 colloquy, or from some other

part of the record, that the defendant knowingly and

voluntarily entered into a sentence appeal waiver, that

waiver should be enforced without requiring the

government to brief the merits of the appeal. Where the

appeal is due to be dismissed, sooner is better than later.

United States v. Buchanan, 131 F.3d 1005, 1008–09 (11th Cir. 1997). 

An appeal waiver is valid if a defendant enters into it knowingly and

voluntarily. Bushert, 997 F.2d at 1350. We have consistently enforced knowing

and voluntary appeal waivers according to their terms. See United States v.

Brown, 415 F.3d 1257, 1272 (11th Cir. 2005); United States v. Frye, 402 F.3d

1123, 1129 (11th Cir. 2005); Williams v. United States, 396 F.3d 1340, 1342 (11th
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Cir. 2005); United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005); United

States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001); United States v. Pease,

240 F.3d 938, 942 (11th Cir. 2001); Buchanan, 131 F.3d at 1009. 

United States v. Howle, 166 F.3d 1166 (11th Cir. 1999), involved a plea

agreement in which Howle waived the right to appeal his sentence and the right to

attack his conviction in any post-conviction proceeding. Id. at 1167. Undeterred

by that, Howle appealed on a basis that was not covered by either of the two

limited exceptions carved out in the appeal waiver. See id. at 1167 n.2. Seeking

to escape the tight grip of his waiver, Howle contended that it was invalidated by

the district court’s statements encouraging him to pursue an appeal. Id. at 1168. 

The district court had said:

I’ve tried hard to see if I could say that this was outside

the heartland. I can’t say that it is . . . . I will say,

however, that I don’t think I have the power to depart,

and by saying that, that means that you are allowed to

appeal me. And if the Eleventh Circuit disagrees with

me and says that I am wrong, I did have the power to

depart, then we can come back. I have already indicated

I likely, given the discretion, would probably not do

prison in this case. I would probably do no more than

halfway house . . . . 

So I cannot depart in this case but I invite and welcome

an appeal. I will stay the report date so that you can

appeal me if you want to . . . .
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Id. As in the present case, the government in Howle did not object to the district

court’s invitation for Howle to appeal despite his having waived his right to do so. 

See id. (“Neither the Government nor the defendant brought the plea bargain to

the court’s attention after this statement was made.”). The court was aware of the

waiver and had specifically questioned the defendant about it in the course of 

ascertaining that it was knowing and voluntary. Id. at 1167. As in the present

case, neither party expressly stated to the court that the waiver would bar an

appeal of the issue that the court had encouraged the defendant to pursue. See id.

at 1167–68. In this case, however, defense counsel did acknowledge in the

exchange leading to the court’s comments that the defendant could appeal only “to

the extent we have any right to appeal, and that has been limited by the

negotiations.” 

In Howle we concluded that the district court’s statements were “most

reasonably interpreted as dicta that had no effect on the court’s prior acceptance of

the plea agreement.” Id. at 1168. We determined that a district court does not

have the power to modify the terms of a plea agreement, which in Howle included

the appeal waiver. Id. We reasoned that the parties had struck a deal that included

the appeal waiver, and altering the terms of that waiver would have cut the heart

out of the bargain. See id. at 1169. “Having approved the plea agreement, the
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district court had no more right to change its terms than it would have to change

the terms of any other contract.” Id. We observed that a waiver of appeal even

includes a waiver of the right to appeal “blatant error.” Id. However, we did note

that “[i]n extreme circumstances—for instance, if the district court had sentenced

Howle to a public flogging—due process may require that an appeal be heard

despite a previous waiver.” See id. at 1169 n.5. 

Howle was not scheduled to be flogged, so we declined to reach the merits

of the appeal and dismissed it based on the plea agreement as it was written. Id. at

1169. If the government had been required to remind the court of the appeal

waiver when the court encouraged Howle to appeal, the decision in that case

would have come out differently. See id. We conclude, therefore, that Howle

forecloses Bascomb’s argument that if a district court encourages a defendant to

appeal a particular issue and the government does not then and there assert that the

appeal is barred by the appeal waiver, it is prevented from doing so on appeal. 

The result in Howle and our reading of it is consistent with our earlier

holding in Buchanan, 131 F.3d at 1008–09, that an appeal waiver was enforceable

despite the fact that at the sentence hearing the parties had disputed the merits of a

particular sentencing issue. See id. at 1009. We stated: “Despite the sharp

disagreement of the parties on the merits of that issue, there is no indication either
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in the colloquy or in the plea agreement that the parties agreed the issue would be

excepted from the appeal waiver the broad terms of which would cover it.” Id. at

1007. We concluded: “Notwithstanding Buchanan’s explicit reservation of the

right to argue his position about that issue at sentencing, a right that he exercised,

the issue was not exempted from the appeal waiver. We enforce the appeal waiver

according to its terms.” Id. at 1009. Buchanan establishes that 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. 

In the present case Bascomb pleaded guilty, and his plea was accepted

during change of plea proceedings in which he was specifically questioned about

his understanding of the appeal waiver. The court found that the waiver was

knowingly and voluntarily made, and Bascomb does not dispute that it was. The

district court accepted the plea agreement, including as it did the appeal waiver. 

Bascomb was adjudicated guilty on the basis of his plea pursuant to the agreement. 

During the sentencing proceedings, defense counsel argued that the mandatory

minimum mandatory sentence the court was forced to impose was unreasonable

but recognized the problem he would have raising that issue on appeal. He said:

Prior to the Court announcing sentencing, Your Honor,

just for the record to the extent we have any right to

appeal, and that has been limited by the negotiations, we
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want to preserve the right to appeal the fact that we think

that the sentence the Court has to impose in this case by

way of mandate from Congress is unreasonable, and 

that –

The district court interrupted counsel to inform him that he could not appeal an

issue unless he presented it to the district court first, and “[t]hen you can appeal

it.” Counsel argued that the sentence of 120 months the court would be forced to

impose was unreasonable and cruel and unusual. The court agreed that the

sentence was unreasonable but not that it was cruel and unusual. Then counsel

stated, “Yes, Your Honor, but I’ve made my record,” and the court replied:

“Certainly. And I think you should perhaps pursue it.”

In his special concurrence, our colleague suggests that “[w]hat really counts,

according to Howle, is what the government told the defendant.” We think what

really counts under Howle and all of our other appeal waiver decisions is what the

defendant and the government agreed to in the plea bargain. What counts is

whether the defendant knowingly and voluntarily agreed to waive his right to

appeal an issue or issues in an agreement the court accepted and which led to the

plea and sentence. Not only is that what counts, that is what should count. We

would not revisit the Howle decision even if the prior panel precedent rule

permitted us to do so. 
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The Howle holding reiterates what we have held before, Buchanan, 131

F.3d at 1008-09, which is that knowingly and voluntarily entered plea agreements

containing appeal waivers are like contracts in which the government and the

defendant have bargained for a deal. See Howle, 166 F.3d at 1168. Defendants

and the government alike benefit from the ability to bargain and undermining the

enforceability of such bargains harm all parties that use them. Buchanan, 131 F.3d

at 1008. For that reason, among others, as long as an appeal waiver is voluntarily

and knowingly entered into as part of a valid plea agreement, and that agreement is

accepted by the court, the waiver is enforceable. It cannot be vitiated or altered by

comments the court makes during sentencing. 

 Appealing his sentence is one of the rights Bascomb traded for the

government’s promise to drop all charges against his wife. In negotiating an

agreement, Bascomb was free to bargain away his right to raise constitutional

issues as well as non-constitutional ones, and he did so. See Brown, 415 F.3d at

1272 (enforcing an appeal waiver despite defendant’s contention that the statute

under which he was convicted violated the non-delegation doctrine of Article I of

the Constitution); Williams, 396 F.3d at 1342 (holding that the plain language of a

sentence appeal waiver can preclude a 28 U.S.C. § 2255 claim based on

ineffective assistance of counsel); Rubbo, 396 F.3d at 1335 (holding that the right
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to appeal a sentence on Apprendi/Booker grounds can be waived in a plea

agreement). 

We do not mean to imply that the right to appeal a sentence that violates the

Eighth Amendment because it is cruel and unusual for some reason other than its

length will always be barred by an appeal waiver. See Howle, 166 F.3d at 1169

n.5 (“In extreme circumstances—for instance, if the district court had sentenced

Howle to a public flogging—due process may require that an appeal be heard

despite a previous waiver.”). All we need to decide here is that a defendant may,

and this one did, knowingly and voluntarily waive his right to appeal a sentence on

the ground that its length, which is less than the statutory maximum, renders it

cruel and unusual. 

APPEAL DISMISSED.
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HILL, Circuit Judge, specially concurring:

Bennie Bascomb, Jr. appeals from his conviction and ten-year sentence of

confinement, asserting that his sentence, mandated by statute, violates his Eighth

Amendment right to be free from cruel and unusual punishment. The United

States moves to dismiss Bascomb’s appeal on the grounds that he has waived his

right to appeal as part of his agreement to plead guilty.

I.

Bascomb grew marijuana at his home. The government did not contend that

he trafficked in the drug. Bascomb’s wife, however, also lived in the home and 

was charged with possession of the marijuana. At the time of his arrest, Bascomb

possessed and was subsequently also charged with possession of a .22 caliber

pistol.

Since he was not a drug dealer, Bascomb had little to offer the government

in exchange for lesser charges. He did, however, want his wife to go free. As a

result, he agreed to a deal in which the government dropped all charges against his

wife in exchange for his guilty plea and admission that he was growing “more than

100" marijuana plants – the number of plants that would trigger a mandatory fiveyear sentence – as well as to the possession of the handgun – also triggering a

mandatory five-year minimum sentence. Under the statutes, these sentences
As far as the record discloses, the government gave nothing further and Bascomb 1

received nothing but his wife’s release.

At sentencing, the Probation Officer advised the court that “. . . absent the mandatory 2

minimum required sentence, the amount of marijuana we’re talking about in this case, the

guidelines sentencing range would be between twelve and eighteen months.”

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would be required to run consecutively.1

At sentencing, the district judge expressed concern about the length of the

mandatory minimum consecutive sentences – ten years:

It’s almost ironic, but if he were a drug dealer he’d almost be in better

shape. I mean this is an instance where if he was trafficking in drugs

so he could turn somebody in, then he would get a lesser sentence. 

He’s a person who perhaps is growing drugs for himself gets the

harsher sentences. It’s like the law has turned on its head. . . . The

court officially states here that but for the mandatory minimum

sentence I would give this defendant a significantly less sentence. . . .

The sentence would be different. Dramatically different.2

Bascomb objected at sentencing that the two consecutive mandatory fiveyear minimum sentences were grossly excessive and violated his Eighth

Amendment right to proportional punishment. See Solem v. Helm, 463 U.S. 298,

303 (1983) (“The Constitution requires us to examine Helm’s sentence to

determine if it is proportionate to this crime”). He stated that he wished to

preserve the right to appeal the sentence on this ground.

The district court, noted that “You can’t appeal that unless I pass on it first. 

. . . You have to first present it to me and then I have to find whether it’s
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unreasonable or not.”

Bascomb’s counsel then stated:

And it is our position that in this case, Your Honor, we believe the

sentence the Court is going to impose, because it has no other

authority to do so , is unreasonable. . . . The fact that the Eighth

Amendment, that it’s cruel and unusual in light of the fact that he has

a criminal history category of one, no prior involvement in law

enforcement, yet the Court has to in this circumstance impose a

sentence of a hundred and twenty months. It is our position that this

sentence is cruel and unusual and unreasonable under 3553.

The district court stated that he agreed with the defendant that the sentence

was unreasonable, but held that it did not violate the Eighth Amendment, to which 

Bascomb responded, “Yes, your Honor, but I’ve made my record. The district

court agreed, stating, “Certainly. And I think you should perhaps pursue it.”

At this point the court asked the government, “Anything else, Counsel?” 

The government responded, “Not from the government, Your Honor.”

The district court then announced, “The court overrules the contention that

the sentence is cruel and unusual. I do agree that it’s unreasonable, but that

doesn’t amount to being cruel and unusual.” 

Although Bascomb waived his right to appeal all issues save ineffective

assistance of counsel and prosecutorial misconduct, he appeals his sentence

asserting that it violates his constitutional right under Eighth Amendment to a
Of course, this case illustrates that a significant portion of judicial authority has already 3

been transferred by Congress to itself. By creating mandatory minimum sentences, Congress –

well in advance of the commission of the offense – has resolved all pertinent issues and

considerations in crafting an appropriate sentence. While much as been made (appropriately it is

submitted) about “judicial legislating,” this sort of “congressional adjudication” represents an

unfortunate blurring of the separate responsibilities of our three branches of government. 

Government counsel, the executive branch, gets into the act by selecting charges from a

menu of possible transgressions, thereby counting backwards from the desired sentence in this

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sentence proportionate to his crime. The government filed a motion to dismiss,

based upon Bascomb’s agreement to waive his right to appeal. Bascomb argues

that the government acquiesced at sentencing to both the objection and this appeal

by not contradicting the district court’s interpretation of the legal consequences of

the events at sentencing.

II.

There can be no doubt, as the majority today holds, that Bascomb agreed in

his plea agreement not to appeal his conviction and sentence on any grounds other

than ineffective assistance of counsel or prosecutorial misconduct. Furthermore, I

agree with the majority that the result in this case is controlled by United States v.

Howle, 166 F.3d 1166 (11 Cir. 1999). I write to suggest, however, that the court th

might well revisit Howle.

Under Howle, the judicial authority of the United States, which I had

heretofore believed reposed in the district judge, has been transferred to the

executive, an Assistant United States Attorney. Howle instructs that the 3
case to the charge that will produce it. As part of this process, the government chooses to forego

its delegated obligation to see to “the faithful execution of the laws” by dismissing charges

against the wife.

The third branch is eliminated and given no role to play in this process.

We are taught that, when the district judge explains the legal result of the proceedings, 4

including events occurring during sentencing, to the defendant, the defendant should ask the

AUSA whether the explanation is correct.

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interpretation and explanation of the defendant’s rights – including his right to

appeal – provided by the district judge to the defendant at sentencing is not

binding, but rather merely dicta. What really counts, according to Howle, is what

the government told the defendant. Imagine the defendant’s surprise upon

learning that the district judge’s interpretation of the law, explained to the

defendant at sentencing, has been trumped by the contract he signed with the

government’s attorney. All the more surprising, since at sentencing when the

judge explained the law to the defendant, including his right to appeal, the

government voiced no objection, its attorney stood mute, not reminding anyone of

the inviolate contractual rights that the government knew would ultimately prevail

over the judge’s interpretation of the law.4

This holding is particularly disturbing since we have enshrined the plea

colloquy as the hallmark of a knowing and voluntary plea. Leaving out even a

smidgen of this mantra requires a finding that the plea was neither knowing nor

voluntary. Nonetheless, when the district court makes an affirmative misstatement
17

of the law to the defendant, say, for example, “if I say this or do that, you have the

right to appeal,” there is no legal effect on the plea whatsoever. It is as though it

never occurred. It is dicta. 

This apparently is the law. I reluctantly concur.