402 F.3d 1123 (11th Cir. 2005), 03-16377, United States v. Frye

Docket Nº:03-16377
Citation:402 F.3d 1123
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cecil Ray FRYE, Jr., Defendant-Appellant.
Case Date:March 11, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1123

402 F.3d 1123 (11th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Cecil Ray FRYE, Jr., Defendant-Appellant.

No. 03-16377

United States Court of Appeals, Eleventh Circuit.

March 11, 2005

Page 1124

Appeal waiver in plea agreement includes the waiver of the right to appeal difficult or debatable legal issues or even blatant error.

Page 1125

Domingo Soto, Madden & Soto, Mobile, AL, for Defendant-Appellant.

Richard H. Loftin, Mobile, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

We withdraw our previous opinion, United States v. Frye, No. 03-16377 , 2005 WL 315563 (11th Cir. Feb. 10, 2005), and substitute the following judgment and opinion. We now dismiss the appeal of the alleged sentencing errors based on the appeal waiver in the plea agreement.

This appeal presents four issues, the second of which is an issue of first impression in the Eleventh Circuit: (1) whether Cecil Ray Frye Jr.'s guilty plea to one count of conspiracy to manufacture methamphetamine under 21 U.S.C. section 846 and two counts of using or carrying a firearm in connection with a drug felony under 18 U.S.C. section 924(c) was knowing and voluntary; (2) whether Frye was properly convicted of the firearms charges under section 924(c) when he was not convicted of the predicate offenses; (3) whether there was an insufficient factual basis to support the firearms convictions; and (4) whether Frye's sentence violated United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that (1) Frye's plea was knowing and voluntary, (2) a conviction on the predicate offense is not necessary for a conviction

Page 1126

under section 924(c), (3) the firearms convictions are supported by the record, and (4) Frye waived his right to appeal his sentence in his plea agreement with the government. We, therefore, affirm the judgment of conviction and dismiss the appeal of Frye's sentence.

I. BACKGROUND

On May 29, 2003, Frye was charged by superseding indictment with seven counts related to drug trafficking and firearms possession, four counts of which are relevant to this appeal. Count One of the indictment charged Frye with conspiracy to manufacture more than 500 grams of methamphetamine. Count Four charged Frye with an attempt to manufacture more than 50 grams of methamphetamine. Count Five charged that during and in relation to the offense charged in Count Four, Frye knowingly used, carried, and possessed a firearm, and Count Six charged that during and in relation to the offense of attempting to manufacture methamphetamine, Frye knowingly used, carried, and possessed a firearm. Count Six did not reference any other count in the indictment.

Frye pleaded guilty to Counts One, Five, and Six, and the government dismissed the remaining charges. The plea agreement contained a limited waiver of the right to appeal the sentence with three exceptions:

20. The defendant acknowledges that he is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal his sentence. In exchange for the recommendations made by the United States in this agreement, the defendant knowingly waives the right to appeal any sentence imposed in the instant case, except for those rights specifically reserved in paragraph 22 below.

....

22. The defendant reserves the right to contest in any appeal or post-conviction proceeding any of the following:

a. Any punishment imposed in excess of the statutory maximum;

b. Any punishment that constitutes an upward departure from the...

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