# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 20

- 3044 September Term, 2021

F ILED O N : N OVEMBER 30, 2021

U

NITED S TATES OF A MERICA

, A PPELLEE

v.

J AMAR G AGE

, ALSO KNOWN AS G O

, ALSO KNOWN AS G O G O

, A PPELLANT

Appeal from the United States District Court

for the District of Columbia (No. 1:18

- cr

- 00112

- 3)

Before: K ATSAS and W ALKER

, Circuit Judges , and G INSBURG

, Senior Circuit Judge

.

J U D G M E N T

We heard this appeal on the record from the United States District Court for the District of Columbia and the parties’ briefs. We fully considered the issues and determined that a published opinion is unnecessary. See D.C. Cir. R. 36(d).

We AFFI RM Gage’s sentence

.

* * *

On January 23, 2020, Jamar Gage pleaded guilty to c onspir ing to d istribute

, and p ossess ing

with the in tent to d istribute

, o ne kilogram or more of a substance or mixture containing a detectable

amount of PCP

, in violation of 21 U.S.C. §§ 841(a)(1) , 841(b)(1)(A)(iv), and 846

.

As part of his plea agreement

, Gage waived “the right to appeal the sentence in this case, including but not limited to any term of imprisonment

. . . and the manner in which the senten ce was determined, except to the extent the Court sentences [ Gage ] above the statutory maximum or guidelines range determined by the Court.” S.A. 21

.

Gage’s sentence

— the statutory minimum of 10 years

— is less than the statutory maximum (life) and wi thin the United States Sentencing Guidelines range determined by the District Court ( 10 years , to 11 years and 5 months).2 Despite that , Gage seeks to appeal his sentence. He a rgues that his criminal history score was improperly calculated and that he w as eligible for a safety

- valve sentence below the otherwise

appli cable statutory minimum

.

He has , however, waived his right to raise those a rgument s on appeal

. See United States

v. Guillen , 561 F.3d 527, 529 (D.C. Cir. 2009).

* * *

R eview ing Gage’s appeal waiver de novo

, we ask three questions: (1) does the waiver unambiguously foreclose the defendant’s claim s ; (2) was the defendant’s waiver knowing, intelligent

, and voluntary ; and (3) were the proceedings in the D istrict C ourt free of a colorable

claim of “ ineffective assistance of counsel in agreeing to the waiver ” and free of a miscarriage of justice caused b y a material procedural error at sentencing ? United States v. Hunt , 843 F.3d 1022, 1027 (D.C. Cir. 2016) (question 1); United States v. Lee , 888 F.3d 503 , 506 (D

. C

. Cir. 2018) (question 2); United States v. Adams , 780 F.3d 1182 , 1183 (D

. C

. Cir. 2015) (cleaned up) (question 3).

As to the first question, w e will not dismiss “a criminal defendant’s appeal if his waiver only arguably or ambiguously forecloses his claims.” Hunt , 843 F.3d at 1027. The relevant portion of Gage’s appeal waiver ( quot ed above) explicitly states that Gage was giving up the right to appeal his sentence with two exceptions. The first exception covers a claim that the District

Court sentenced him above the statutory maximum. The second exception covers a claim that the District Court sentenced him above the Guidelines range it determined.

Here, Gage makes neither of those claims. Instead, on appeal, he argues for a new Guidelines range that would trigger his eligibility for a safety

- valve sentence . His appeal w aiver

therefore unambiguously forecloses this appeal

.

Turning to the next question, we “must analyze the entire record” to determine whether a defendant knowingly, intelligently, and voluntarily waived his right to appeal

. Lee , 888 F.3d at

507. Although “[a] written plea agreement in which the defendant waives the right to appeal is strong evidence,” we also “examine, among other things, the clarity of the written plea agreement, the defendant’s signature on the agreement, defense counsel’s signature on the agreement, the defendant’s statements at the plea hearing, defense counsel’s statements at the plea hearing, and the judge’s questioning a nd statements at the plea hearing.” Id.

Here , Gage’s appeal waiver was knowing, intelligent, and voluntary. To begin with, the written plea agreement was clear. B oth Gage and his attorney signed it, acknowledging that they

had read it and discussed i t with each other. In addition, a t the plea hearing, t he District Court placed Gage under oath

, and based upon Gage’s statements and the parties’ representations , it

determined that : Gage was competent ; Gage understood everything required by Fed eral R ule of

Crim inal Pro cedure 11(b)(1) ; Gage’s plea was voluntary; and there was a factual basis for Gage’s3 plea. Finally

, after all that

, the District Court went even further and said to Gage: “Now, if I accept your guilty plea, which I am ready to do, I want you to understand that it’s very hard to withdraw it. So you can’t change your mind.

. . . It’s an important decision for you. All right. Do you want me to accept your gui lty plea at this time?” S.A. 73. Gage replied, “Yes, Y our
H onor. Please.” Id.

F inally, we will not enforce a n otherwise valid appeal waiver “if the defendant makes a colorable claim he received ineffective assistance of counsel in agreeing to the waiver or if the sentencing court’s failure in some material way to follow a prescribed sentencing procedure results in a miscarriage of justice.” Adams , 780 F.3d at 1183 (cleaned up). Gage makes no ne of those

claims.

We therefore affirm Gage’s sentence

.

* * *

This disposition is unpublished. See D.C. Cir. R. 36(d). We direct the Clerk to withhold this mandate until seven days after resolution of a timely petition for panel or en banc rehearing.

See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/

Daniel J. Reid y Deputy Clerk