[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13731

Non-Argument Calendar

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D.C. Docket No. 2:16-cr-00137-SPC-MRM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRIAN ARTHUR THOMAS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(February 27, 2018)

Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:

Brian Thomas appeals from his 360-months sentence, imposed after he pled 

guilty to one count of sexual exploitation of a child by producing child 

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pornography, in violation of 18 U.S.C. §§ 251(a) and (e). He argues the district 

court erred in calculating his United States Sentencing Guidelines range; in 

denying his request for a downward departure; in denying his request for a variant 

sentence; and in imposing a substantively unreasonable sentence. The government 

filed a motion to dismiss Thomas’s appeal based on the sentence-appeal waiver in 

his plea agreement. The government argues that Thomas knowingly and 

voluntarily waived his right to appeal his sentence on the grounds he raises in this 

appeal. Thomas responds that he did not knowingly and voluntarily agree to the 

sentence-appeal waiver “because of his lack of education, his drug addiction and 

his abusive childhood, which clearly damaged his cognitive ability to reason and 

understand what waiving said right to appeal meant.” After careful review, we

agree that Thomas’s waiver was knowing and voluntary. 

I.

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

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Such waivers are valid 

and enforceable if they are made knowingly and voluntarily. United States v. 

Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). The government can demonstrate 

a waiver was knowing and voluntary by showing either that (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 

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significance of the waiver. Id. When reviewing the plea colloquy, we look for 

clear language from the district court explaining what the defendant is giving up. 

See id. at 1325–53 (concluding the district court’s confusing language about the 

sentence-appeal waiver made it unclear whether the defendant understood that he 

was giving up his appeal rights). Also, we “strong[ly] presum[e] that the 

statements made during the colloquy are true.” United States v. Medlock, 12 F.3d 

185, 187 (11th Cir. 1994). 

II.

Part 7 of the plea agreement, titled “Defendant’s Waiver of Right to Appeal 

the Sentence,” stated that Thomas agreed to 

waive[] the right to appeal [his] sentence on any ground, . . . except 

(a) the ground that the sentence exceeds [his] applicable guidelines 

range as determined by the Court pursuant to the United States 

Sentencing Guidelines; (b) the ground that the sentence exceeds the 

statutory maximum penalty; or (c) the ground that the sentence 

violates the Eighth Amendment to the Constitution.

Thomas does not contend that his claims on this appeal fall into these exceptions. 

Thus, if the waiver is valid, we must dismiss his appeal. 

Thomas agrees that “the record makes clear that the District Court 

specifically questioned [him] about the [sentence-appeal] waiver.” He also agrees 

he “may have answered that he understood the plea agreement and waiver and that 

his counsel answered all of his questions.” However, he argues that his history of 

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abuse and drug use “brings into question [his] ability to understand the waiver, 

even though it was explained to him by counsel and the [court].” He contends this 

is sufficient to render his waiver invalid. 

We disagree. During the plea colloquy, Thomas said he understood the 

court’s questions, the nature of the proceeding, the court’s explanations of his plea 

agreement, and the rights he was giving up by pleading guilty. In response to the 

court’s questions, Thomas said that he had about a twelfth grade education and 

could read, write, and understand English; that he was not under the influence of 

any drugs, alcohol, medication, or other intoxicant, nor had he taken any drugs or 

medication in the last twenty-fours; and that he had never suffered from or been 

treated for any mental or emotional disease or illness, nor did he currently suffer 

from any such problem. When asked if there was “anything at all” that could 

affect his ability “to think clearly, to concentrate, or to understand these 

proceedings,” Thomas answered no. His attorney also said he did not have any 

concerns about Thomas’s competency. In short, there is nothing in the record 

indicating Thomas did not understand the waiver and its consequences or 

otherwise rebutting the “strong presumption that the statements made during the 

colloquy are true.” See id. And Thomas has not pointed to, nor have we 

identified, anything in the record indicating that the waiver provision or the court’s 

colloquy was confusing or misleading. See Bushert, 997 F.2d at 1352–53.

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On this record, the government’s motion to dismiss is GRANTED.

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