[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 12-10181; 12-11083

Non-Argument Calendar

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D.C. Docket No. 1:10-cr-00240-TCB-GGB-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

KEITH ANTHONY JACKSON, 

 Defendant - Appellant. 

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Appeals from the United States District Court

for the Northern District of Georgia

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(April 5, 2013)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM: 

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Keith Jackson appeals his 61-month sentence after pleading guilty to wire 

fraud, in violation of 18 U.S.C. § 1343, and aggravated identity theft, in violation 

of 18 U.S.C. § 1028A(a)(1). On appeal, Jackson argues that the government 

breached the plea agreement by arguing for a three-level victim enhancement. He 

also argues that his presentence investigation report (PSI) should be amended 

because it contains inaccurate information. Finally, Jackson appeals the district 

court’s denial of his pro se post-sentencing motion alleging bias on the part of the 

district judge.1

 

The government responded to Jackson’s appeal by filing a motion to dismiss 

based on an appeal waiver that was included in Jackson’s plea agreement. The

government does not oppose Jackson’s request to amend the PSI. For the reasons 

that follow, we affirm the district court’s sentence, but remand to correct the PSI’s 

inaccuracies. 

“We review the validity of a sentence appeal waiver de novo.” United 

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Where a defendant fails 

to raise an alleged breach of a plea agreement before the district court, we review 

the alleged breach for plain error only. United States v. Romano, 314 F.3d 1279, 

1281 (11th Cir. 2002). Plain error occurs if “(1) error occurred, and (2) the error is 

 

1 The appeal from the denial of Jackson’s motion alleging bias is Case No. 12-11803 and 

has been consolidated with Jackson’s appeal from his sentence, Case No. 12-10181. 

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plain, (3) affects the defendant’s substantial rights, and (4) seriously affects the 

fairness, integrity, or public reputation of the judicial proceedings.” Id. at 1281. 

A sentence appeal waiver will be enforced if it was made knowingly and 

voluntarily. United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To 

establish that the waiver was made knowingly and voluntarily, the government 

must either show that district court specifically questioned the defendant about the 

waiver during the plea colloquy, or that the record makes clear that the defendant 

otherwise understood the full significance of the waiver. Id. at 1351. 

At a hearing in December 2012, Jackson expressly agreed to modify his plea 

agreement to allow the government to argue in favor of a victim enhancement in 

exchange for his ability to argue for a downward departure. This agreement, along 

with Jackson’s understanding of his appeal waiver, is memorialized in the record. 

The district court applied the three-level victim enhancement in addition to the 

Guidelines calculations proposed in the plea agreement and an additional one-level 

reduction for acceptance of his responsibility, yielding a total offense level of 13. 

Jackson’s Guidelines range was 30 to 37 months for wire fraud, to run 

consecutively with a mandatory 2-year sentence for aggravated identity theft. The 

district court imposed a sentence at the high end of the Guidelines range, for a total 

of 61 months’ imprisonment. The district court also stated on the record that even 

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if the victim enhancement had not applied, Jackson’s sentence would still have 

been 61 months.

Jackson’s contention that the government breached the plea agreement is not 

supported by the record. The record demonstrates that he knowingly and 

voluntarily waived his right to appeal his sentence, and that no exception to this 

general rule applies. See Bushert, 997 F.2d at 1351. Moreover, the transcript from 

the sentencing hearing shows that Jackson wanted to modify the plea agreement to 

allow his attorney to argue for a downward departure. In exchange for this, he 

allowed the government to argue for the victim enhancement. He must live with 

the consequences of that decision. 

Jackson’s allegation that the district court was biased and should have been 

recused is similarly without merit. On appeal, the test for determining whether a 

judge should recuse himself is whether an objective, disinterested, lay observer 

fully informed of the facts underlying the grounds on which recusal was sought 

would have significant doubts about the judge’s impartiality. See United States v. 

Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989). Although Jackson alleges that 

the district judge made inappropriate comments about him, there is nothing in the 

record to support this assertion. In short, Jackson presents no evidence calling into 

doubt the district judge’s impartiality. The district court did not err in denying 

Jackson’s motion for recusal.

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We do find merit, however, in Jackson’s argument that his PSI should be 

amended. As noted earlier, the United States does not oppose a modification to 

Jackson’s PSI. The item about which Jackson complains had no impact on 

Jackson’s Guidelines calculation. Therefore, we will remand to the district court 

for the limited purpose of amending the PSI.

We grant the government’s motion to dismiss Jackson’s appeal of his 

sentence. We also affirm the district court’s denial of Jackson’s motion for 

recusal. We remand for the limited purpose of amending Jackson’s PSI. 

AFFIRMED.

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