In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14259

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

MICHAEL AGOSTO-MARTINEZ, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:20-cr-00025-CEM-DCI-1

____________________

USCA11 Case: 20-14259 Date Filed: 11/24/2021 Page: 1 of 4
2 Opinion of the Court 20-14259

Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

The Government’s motion to dismiss this appeal pursuant 

to the appeal waiver in Appellant’s plea agreement is GRANTED.

See United States v. Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 

1993) (sentence appeal waiver will be enforced if it was made 

knowingly and voluntarily); United States v. Bascomb, 451 F.3d 

1292, 1297 (11th Cir. 2006) (appeal waiver “cannot be vitiated or 

altered by comments the court makes during sentencing”); United 

States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) 

(waiver of the right to appeal includes waiver of the right to appeal 

difficult or debatable legal issues or even blatant error).

USCA11 Case: 20-14259 Date Filed: 11/24/2021 Page: 2 of 4
20-14259 JORDAN, J., Dissenting 1

JORDAN, Circuit Judge, dissenting.

I would deny the government’s motion to dismiss this appeal pursuant to the appeal waiver in Mr. Agosto-Martinez’s plea 

agreement. With respect, I therefore dissent.

An appeal waiver is enforceable only if the defendant made 

it knowingly and voluntarily. See United States v. Bushert, 997 F.2d 

1343, 1350–51 (11th Cir. 1993). To show that an appeal waiver is

knowing and voluntary, “[t]he government must show that either 

(1) the district court specifically questioned the defendant concerning the sentence appeal waiver during the Rule 11 colloquy, or (2) 

it is manifestly clear from the record that the defendant otherwise 

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

With regard to the appeal waiver, the district court at Mr. 

Agosto-Martinez’s change of plea hearing stated only that “you’ve 

expressly waived your right to appeal your sentence in accordance 

with the limitations set forth in the plea agreement.” Plea Hearing 

Transcript at 8–9. That superficial questioning is insufficient to 

meet the first Bushert prong. See United States v. James, 744 F. 

App’x 664, 665 n.1 (11th Cir. 2018) (refusing to enforce an appeal 

waiver because the district court identified only some of the exceptions to the waiver, and did not ask the defendant if he understood the waiver nor whether he understood it at the time he entered into it); United States v. Quintanilla, 658 F. App’x 496, 497 

(11th Cir. 2016) (refusing to enforce an appeal waiver because, 

USCA11 Case: 20-14259 Date Filed: 11/24/2021 Page: 3 of 4
2 Opinion of the Court 20-14259

though the magistrate judge read out the terms of the waiver at the 

change of plea hearing, “she did not specifically question [the defendant] about the waiver or confirm that he understood what 

those terms meant”); United States v. Grant, 689 F. App’x 935, 942 

(11th Cir. 2017) (concluding that the district court did not sufficiently question the defendant on his appeal waiver because, 

though it confirmed that he understood the waiver, the court’s “explanation was brief and vague, asking only whether [the defendant]

had understood by signing the waiver he had given up his right to 

appeal except in the limited number of circumstances explicitly set 

forth in the plea agreement”). See also United States v. Smith, 618 

F.3d 657, 665 (7th Cir. 2010) (refusing to enforce an appeal waiver 

because the district court did not provide any explanation to the 

defendant of the substance of the waiver during the plea hearing).

In my view, it is not manifestly clear from the record that 

Mr. Agosto-Martinez understood the full significance of his waiver

for purposes of the second Bushert prong. The government relies 

on the district court’s brief statement and the text of the plea agreement. See Govt.’s Mot. at 4–5. But the court’s questioning was insufficient, and we have “reject[ed] the view . . . that an examination 

of the text of the plea agreement is sufficient to find the waiver 

knowing and voluntary.” Bushert, 997 F.2d at 1352.

USCA11 Case: 20-14259 Date Filed: 11/24/2021 Page: 4 of 4