[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-12187

Non-Argument Calendar

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D.C. Docket No. 2:11-cr-00421-CLS-MHH-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

MANUEL CHANEY, III, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Alabama

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(June 4, 2014)

Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM: 

Manuel Chaney, III appeals both his conviction and 70-month sentence after 

pleading guilty to one count of access device fraud, in violation of 18 U.S.C. 

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§ 1029(a)(5) and (b)(1), and one count of aggravated identity theft, in violation of 

18 U.S.C. § 1028A(a)(1). Chaney makes two arguments in this appeal. First, he 

argues that his identity theft conviction is invalid because the factual basis set forth 

during the plea colloquy is insufficient to sustain his conviction. Second, he argues

that the district court erred when it applied several enhancements to increase his 

offense level. After Chaney filed this appeal, the government moved to dismiss it 

because his plea agreement contained both a conviction and a sentence appeal 

waiver, and none of the exceptions to the waivers apply. After careful review, we 

dismiss Chaney’s appeal from his sentence. We decline to dismiss his appeal of 

the conviction, but nevertheless affirm. 

I.

We first consider the government’s motion to dismiss Chaney’s appeal 

based on the appeal waivers included in his plea agreement. The appeal waiver 

provides that:

In consideration of the recommended disposition of this case, I, 

MANUEL CHANEY III, hereby waive and give up my right to appeal 

my conviction and/or sentence in this case . . . .

The defendant reserves the right to contest in an appeal or postconviction proceeding any of the following:

(a) Any sentence imposed in excess of the applicable statutory 

maximum sentence(s); 

(b) Any sentence imposed in excess of the guideline sentencing 

range determined by the Court at the time sentence is imposed; and

(c) Claims of ineffective assistance of counsel.

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This waiver appeared in bold in the plea agreement, and required Chaney’s 

signature immediately after the waiver language signifying that Chaney 

“knowingly and voluntarily” entered into the waiver. 

Although the waiver language itself purports to cover appeals from both the 

conviction and the sentence, the district court’s representation of the waiver’s 

scope during the change of plea hearing was more limited. When the court 

confirmed that Chaney understood the terms to which he was agreeing, the court 

explained that by entering into the agreement, Chaney “may have waived or given 

up some or all of [his] right to appeal any sentences imposed by this Court.” At no 

time during the plea colloquy did the court confirm that Chaney understood the 

appeal waiver to prevent him from appealing from his conviction as well as the 

sentence. 

This Court reviews the validity of an appeal waiver de novo. See United 

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008) (regarding sentence appeal 

waivers); see also United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008) 

(noting that de novo standard of review applies to conviction appeal waivers as 

well). An appeal waiver will be enforced if it was made knowingly and 

voluntarily. See 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

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about the waiver during the colloquy, or (2) the record makes clear that the 

defendant otherwise understood the full significance of the waiver. Id. 

A.

It is clear on this record that Chaney’s agreement to the sentence appeal 

waiver was knowing and voluntary. The district court specifically questioned 

Chaney about the sentence appeal waiver, and he confirmed that he understood it. 

This being the case, Chaney is barred from appealing his sentence unless one of the 

exceptions to the appeal waiver applies. See id. 

The facts here do not bring Chaney’s appeal of his sentence within one of 

the narrow exceptions. First, Chaney’s 70-month sentence is far less than the 204-

month statutory maximum sentence applicable to his convictions. See 18 U.S.C. 

§ 1029(c)(1)(A)(ii) (180-month maximum); id. § 1028A(a)(1) (mandatory 24-

month sentence, to be served consecutive to any other term of imprisonment). 

Second, although Chaney complains about the enhancements the district court

applied to him, the sentence does not trigger the second exception because it was 

not in excess of the guideline range “as determined by the Court” at the time of 

sentencing. The court calculated a guideline range of 46–57 months imprisonment 

for the access device conviction and a mandatory consecutive 24-month sentence 

for the aggravated identity theft conviction, for a total guideline range of 70–81 

months. Chaney’s 70-month sentence is within this range. Finally, Chaney has 

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not argued in this appeal that his counsel was ineffective.

1

 Given the 

circumstances of this case, the government’s motion to dismiss the sentencerelated appeals based on the waiver is well taken. 

B.

On the other hand, it is not clear that the conviction appeal waiver precludes 

our review of Chaney’s challenge to the sufficiency of the factual basis upon which 

the district court accepted his guilty plea. Given the shortcomings in the plea 

colloquy as to the conviction appeal waiver, and the fact that it makes no 

difference to the outcome here, we decline the government’s request to dismiss 

Chaney’s appeal from his conviction. 

We hesitate to grant the government’s motion for two reasons. First, 

whether Chaney knowingly and voluntarily waived his right to appeal his 

conviction is not clear on this record. The district court’s explanation of the appeal 

waiver seemed to assume that the waiver covered only appeals from the sentence,

and at no point during the plea colloquy did the district court assure itself that 

Chaney understood the effect of the conviction appeal waiver as well. And, 

 1 Even if Chaney did raise an ineffective assistance of counsel claim, the record is not 

sufficiently developed for us to consider it on direct appeal. See United States v. Merrill, 513 

F.3d 1293, 1308 (11th Cir. 2008). On this record, such a claim is properly reserved for collateral 

attack under 28 U.S.C. § 2255. Id.; see also Massaro v. United States, 538 U.S. 500, 504, 123 S. 

Ct. 1690, 1694 (2003) (“[A]n ineffective-assistance-of-counsel claim may be brought in a 

collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on 

direct appeal.”). 

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although Chaney’s attorney said he discussed the agreement with Chaney, the 

government has pointed to no evidence showing whether the attorney correctly 

understood the waiver’s scope, or was under the same misapprehension as the 

district court appeared to be. On the record before us, it is therefore not clear that 

the government has met its affirmative burden to demonstrate knowing and 

voluntary agreement to the conviction appeal waiver. Cf. United States v. Weaver, 

275 F.3d 1320, 1333 (11th Cir. 2001) (finding that the government met its burden 

to show the sentence waiver provision was enforceable because “the waiver 

provision was referenced during [the defendant’s] Rule 11 plea colloquy and [the 

defendant] agreed that she understood the provision and that she entered into it 

freely and voluntarily”). 

Second, this Court has not yet decided whether a conviction appeal waiver 

prevents a defendant from challenging the sufficiency of the factual basis 

underlying the district court’s acceptance of his guilty plea. Federal Rule of 

Criminal Procedure 11(b)(3) requires a district court to first “determine that there 

is a factual basis for the plea” before the court can enter a judgment based on that 

plea. This requirement protects “a defendant who mistakenly believes that his 

conduct constitutes the criminal offense to which he is pleading.” United States v. 

Frye, 402 F.3d 1123, 1128 (11th Cir. 2005) (per curiam) (quotation mark omitted). 

Based on this prerequisite to conviction pursuant to a guilty plea, other 

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Circuits considering what types of claims are forfeited by a conviction appeal

waiver have said that “[e]ven valid waivers do not bar a claim that the factual basis 

is insufficient to support the plea.” Hildenbrand, 527 F.3d at 474.

2

 A panel of this 

Court recently agreed with Hildenbrand’s reasoning, albeit in an unpublished, nonbinding opinion. United States v. Anaya-Medina, ___ F. App’x ____, 2014 WL 

930284, at *3 (11th Cir. Mar. 11, 2014) (per curiam). We respect the ruling of our 

colleagues in Anaya-Medina, as well as other Circuit Court opinions addressing 

similar issues, that a defendant can still challenge the sufficiency of the factual 

basis on which the district court accepted the guilty plea even in the face of a 

knowing and voluntary appeal waiver. For these reasons, and (again) because it 

makes no difference to the outcome here, we deny the government’s motion to 

dismiss Chaney’s challenge to the sufficiency of the factual basis underlying his 

conviction based on the conviction appeal waiver. 

The government also argues that, even if the conviction appeal waiver does 

not preclude our review, his unconditional, knowing, and voluntary guilty plea 

 2 The Second Circuit has similarly held that a conviction appeal waiver does not preclude a 

defendant from challenging defects in the plea itself, like the sufficiency of its factual basis.

United States v. Adams, 448 F.3d 492, 497 (2d Cir. 2006) (“We note at the outset that despite a 

provision in the plea agreement stating that Adams will ‘not . . . file an appeal or otherwise 

challenge the conviction or sentence,’ we may properly review the plea proceedings. This is 

because a defendant retains the right to contend that there were errors in the proceedings that led 

to the acceptance of his plea of guilty, and he may argue that the district court failed to satisfy the 

requirement that there is a factual basis for the plea.” (alteration in original) (quotation marks 

omitted)).

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does. The government is right that a knowing, voluntary, and unconditional guilty 

plea, like Chaney’s,3 waives a defendant’s right to raise many challenges on appeal 

regardless of whether the plea is accompanied by an appeal waiver. United States 

v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009) (noting that by entering a guilty 

plea, a defendant waives his right to raise non-jurisdictional challenges on appeal). 

But where the defendant challenges the district court’s compliance with the 

requirements of Rule 11 before accepting his guilty plea, this Court will consider 

the defendant’s challenge on appeal notwithstanding the plea. See United States v. 

Ternus, 598 F.3d 1251, 1254–55 (11th Cir. 2010) (reaching the merits of the 

defendant’s claim that “the district court erred by accepting his guilty plea because 

it was not supported by a sufficient factual basis”); Frye, 402 F.3d at 1128–29 

(same). This is exactly the sort of claim Chaney makes in this appeal—that the 

district court should not have accepted his plea given Rule 11(b)(3)’s requirement 

that the factual basis support conviction. As a result, the government’s argument 

that we should dismiss Chaney’s appeal on waiver grounds is misplaced. 

II.

Even though we do not dismiss Chaney’s appeal on waiver grounds, his 

claim nevertheless falls short on the merits. He argues that the factual basis set 

 3 At least, we assume that Chaney’s plea was knowing and voluntary, because he has not argued 

otherwise in this appeal. See United States v. Levy, 416 F.3d 1273, 1275 (11th Cir. 2005) (per 

curiam) (noting that issues not raised in an opening brief are considered waived). 

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forth during the plea colloquy was insufficient to support his conviction because

§ 1028A does not prohibit the conduct in which Chaney engaged: stealing 

deceased persons’ identities for the purpose of accessing their bank accounts and 

diverting funds for his own use. Because he did not make this argument before the 

district court, we review only for plain error. Ternus, 598 F.3d at 1254. To show 

plain error, Chaney “must show a clear error that prejudiced him by affecting his 

substantial rights.” Id. “An error is not plain unless it is contrary to explicit 

statutory provisions or to on-point precedent in this Court or the Supreme Court.” 

United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009) (per curiam).

This Court has previously held that § 1028A “criminalizes the use of a real 

person’s identity, regardless of whether that person is currently living.” United 

States v. Zuniga-Arteaga, 681 F.3d 1220, 1225 (11th Cir. 2012). Chaney tries to 

distinguish his case from Zuniga-Arteaga because that case involved the use of a 

person’s name and birthdate, whereas his case involves only the use of a person’s 

bank account number. But this Court’s decision in Zuniga-Arteaga that the term 

“person” for purposes of § 1028A includes deceased as well as living persons does

not depend at all on the form of identification involved. Id. at 1223–26. Indeed, 

this Court acknowledged that the definition set forth in that case applied to all 

cases involving the use of “any name or number that may be used to identify a 

specific individual.” Id. at 1224 (emphasis added) (quotation marks and ellipses

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omitted). Because Chaney’s proposed distinction finds little if any support in the 

Zuniga-Arteaga opinion, it cannot be said that the district court plainly erred by 

accepting that Chaney’s use of deceased persons’ bank account numbers was 

prohibited by § 1028A.

III.

The government’s motion to dismiss Chaney’s appeal from his sentence is 

granted, but the motion to dismiss the appeal from his conviction is denied. 

Nevertheless, we affirm the district court’s acceptance of Chaney’s guilty plea in 

light of our precedent interpreting § 1028A. 

MOTION TO DISMISS GRANTED IN PART AND DENIED IN 

PART; AFFIRMED.

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