[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                           NOVEMBER 20, 2007
                               No. 07-11520                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

         D. C. Docket No. 06-01642-CV-TWT-1 & 04-00224 CR-2-1

BRENDA BROWN,



                                                     Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                     Respondent-Appellee.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                            (November 20, 2007)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Brenda Brown, a federal prisoner incarcerated for 60 months for conspiracy
to commit fraud, money laundering, and obstruction of justice; 87 months for wire

fraud; and 87 months for obstruction of justice, appeals pro se the district judge’s

denial of her 28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence.

We affirm.

                                I. BACKGROUND

      Brown pled guilty in 2004 under a plea agreement to three counts of a 158-

count indictment charging her and twelve other individuals with conspiracy to

commit wire fraud, money laundering, and obstruction of justice. The plea

agreement contained a “LIMITED WAIVER OF APPEAL” that provides:

      To the maximum extent permitted by federal law, the defendant
      voluntarily and expressly waives the right to appeal her sentence and
      the right to collaterally attack her sentence in any post conviction
      proceeding on any ground, except that the defendant may file a direct
      appeal of an upward departure from the otherwise applicable
      sentencing guideline range.

R1-177 at 5. The plea agreement also permitted Brown to file a direct appeal if the

government appealed. Brown signed the plea agreement and acknowledged that

she understood the terms, had discussed them with her attorney, and recognized

that she was waiving most of her appellate rights. The plea agreement did not

contain a waiver of the right to appeal the determination of guilt.

      At the plea colloquy, the district judge ensured that Brown understood the

rights that she was waiving, the nature of the charges, the maximum sentences that

                                           2
could be imposed, and that she wanted to plead guilty. The judge also noted that

Brown could appeal only if he upwardly departed from the Sentencing Guidelines,

and Brown stated that she understood and was voluntarily waiving her right to

appeal her sentence. Brown also acknowledged that she could be ordered to pay

restitution to the victims of the offense.

      The presentence investigation report (“PSI”) assigned Brown criminal

history category I, which, when combined with a total offense level of 38, resulted

in the accompanying Sentencing Guidelines range of 235 to 293 months of

imprisonment. The PSI recommended setting restitution at $11,237,474.95.

Brown raised several objections to the PSI, including erroneous restitution

calculations.

      Before her sentence was imposed, Brown withdrew her restitution objection.

The government requested 90 additional days in which to determine the final

amount of restitution; Brown did not object. After considering a motion by the

government for a downward departure and determining that an even greater

departure was appropriate, the district judge found that the applicable Sentencing

Guidelines range was 87 to 108 months of imprisonment and sentenced Brown to

60 months on the conspiracy count, 87 months on the wire-fraud count, and 87

months on the obstruction-of-justice count, all to run concurrently. Before



                                             3
concluding the proceeding, the judge informed Brown that she had ten days from

the entry of judgment in which to appeal.

      Judgment was entered on July 6, 2005; no notice of appeal was filed. On

December 16, 2005, the judgment was amended to change the total restitution

calculation to $11,089,686.23, for which Brown was held jointly and severally

liable with other codefendants. No notice of appeal was filed.

      Nevertheless, Brown filed her § 2255 motion within one year of the

expiration of the time in which to file a direct appeal. The district judge denied her

§ 2255 motion and determined that he had no authority to grant the motion because

she freely and voluntarily waived her right to appeal or collaterally attack her

sentence. Judgment was entered.

      Brown timely requested a certificate of appealability (“COA”) on three

issues. First, she argued that her rights to effective assistance of counsel and due

process were violated when her counsel failed to file an Anders1 brief. According

to Brown, “an appeal waiver does not foreclose the filing of a so-called ‘Anders’

brief, and counsel’s failure to do [s]o when requested by a client triggers the per se

. . . prejudice rule.” R2-474 at 2. Second, she contended that her constitutional

procedural rights were violated by the erroneous manner in which restitution was



      1
          Anders v. California, 

, 

(1967).

                                                4
calculated. Third, she maintained that the government had breached the plea

agreement by holding her liable for restitution stemming from counts to which she

did not plead guilty. Brown further requested permission to file an out-of-time

appeal.

      In her pro se § 2255 motion, Brown alleged (1) that the district judge

improperly ordered her to make restitution and (2) that the judge improperly

determined the amount of restitution, in violation of her plea agreement. Although

she admitted pleading guilty and not appealing, she asserted that she did not file a

direct appeal because

      I was informed by my attorney that if I appealed my case I would end
      up with more time. Also, I was informed that I had waived all rights
      to appeal as it was stipulated in the Plea Agreement. My legal
      knowledge was lacking. Therefore, I relied on my attorney’s advice
      as to how [to] proceed in this matter and to not appeal.

R2-443 at 4.

      More than two months later, Brown submitted a memorandum of law and

argued that the restitution amount was erroneously calculated because restitution

should result only from the counts of conviction; she contended that she had been

held liable for other counts. Consequently, she argued that the plea agreement was

breached because the government had agreed to dismiss the remaining counts.

Additionally, she contended that she was never provided an opportunity to



                                          5
challenge the restitution amount because the order was erroneously entered post-

sentencing. Brown requested that she be permitted to re-plead or that the case be

remanded to a different judge for resentencing.

      Brown also asserted that her guilty plea possibly was involuntary because

she was clinically depressed at the time. She further contended that she did not

receive proper legal representation because the government requested that she

attend meetings without the aid of her counsel, and her counsel agreed. While her

counsel had promised to file several objections to the PSI, he did not do so, and she

was never given the opportunity to reject the plea agreement because the district

judge’s questions were not fully explained to her.

      Notwithstanding the admission in her § 2255 motion that she chose not to

appeal after consulting with her counsel, Brown contended that she was entitled to

an out-of-time appeal on the issue of whether she received ineffective assistance of

counsel because her counsel failed to file a notice of appeal. Brown stated that she

asked her attorney to appeal but that her attorney refused and told her that she did

not have the right to appeal. She also asserted that her sentence appeal waiver did

not eliminate the need to file an Anders brief and that failure to do so after a

client’s request constitutes per se prejudice.

      The district judge granted a COA only as to “whether the Defendant can



                                           6
claim ineffective assistance of counsel for failure to file an Anders brief where the

Defendant waived her right to appeal from her guilty plea.”2 R2-480. Neither

Brown nor the government moved to amend the COA before briefing was

completed.

                                     II. DISCUSSION

A. Appellate Review of a § 2255 Motion with a Sentence Appeal Waiver Provision

      Brown generally argues that the district judge erred in denying her motion

for post-conviction relief and that the judge incorrectly found that her sentence

appeal waiver barred her from seeking post-conviction relief. In a § 2255

proceeding, we review a district judge’s legal conclusions de novo and factual

findings for clear error. Lynn v. United States, 

, 1232 (11th Cir.

2004) (per curiam). Arguments outside the scope of the COA usually will not be

considered on appeal, although the COA will be construed in light of the pleadings

and record. Murray v. United States, 

, 1251 (11th Cir. 1998) (per

curiam). Because Brown is proceeding pro se, we liberally construe her pleadings.

Tannenbaum v. United States, 

, 1263 (11th Cir. 1998) (per curiam).

      We construe a COA in light of the pleadings and record to determine

whether Brown waived her right to collateral appeal, since the district judge denied



      2
          We consider appellate briefing generally to encompass an Anders brief.

                                               7
her § 2255 motion based on the collateral appeal waiver and not on the merits.

. We have held that sentence appeal waivers are valid if

they are made knowingly and voluntarily. United States v. Bushert, 

, 1350 (11th Cir. 1993). For a sentence appeal waiver to be enforced, “[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.” 

“A waiver of the right to appeal

includes a waiver of the right to appeal difficult or debatable legal issues—indeed,

it includes a waiver of the right to appeal blatant error.” United States v. Howle,

, 1169 (11th Cir. 1999). “Waiver would be nearly meaningless if it

included only those appeals that border on the frivolous.” 

plea colloquy, the district judge specifically questioned Brown about

her sentence appeal waiver, and she acknowledged that she was waiving her rights

to appeal unless the district judge departed upward. Although the judge did not

specifically note that Brown was waiving the right to challenge her sentence

collaterally, this waiver was stated plainly in her plea agreement, to which Brown

agreed after acknowledging that she had read and understood it. Therefore, her

sentence appeal waiver was made knowingly and voluntarily, and is valid.



                                          8


. To the extent Brown properly raised sentencing

arguments in her § 2255 motion, they are barred by the sentence appeal waiver in

her plea agreement from being raised collaterally.

B. Restitution Challenges

      Brown raises restitution issues in her pro se brief and in reply to the

government’s contention that these challenges are meritless. A § 2255 motion

cannot be used by a federal prisoner challenging the restitution portion of his or her

sentence, because § 2255 applies only to claiming the right to be released from

custody. Blaik v. United States, 

, 1343 (11th Cir. 1998). Moreover,

absent exceptional circumstances, a restitution calculation may not be challenged

for the first time in a collateral proceeding. Dohrmann v. United States, 

, 1280-81 (11th Cir. 2006). Accordingly, we will not consider Brown’s

restitution arguments for the first time in her § 2255 motion. 

Allegations

      Brown contends that her plea was involuntary, the government breached her

plea agreement, and her counsel informed her that her conviction could not be

appealed. She also asserts that she had several objections to her PSI and asked her

counsel to appeal these grounds, but her counsel did not appeal these or any

sentencing issues. Liberally construing her pro se brief, Brown suggests that she



                                          9
specifically asked her counsel to file a notice of appeal and, because her counsel

did not, she is entitled to an out-of-time appeal.

        The COA plausibly may be construed to ask whether Brown’s counsel was

ineffective for not filing an appellate brief.3 Given its wording, the COA cannot be

construed to ask whether counsel was ineffective for failing to file a notice of

appeal, and the district judge did not address this issue in his order. Whether

counsel is ineffective is a mixed question of law and fact that we review de novo.

United States v. Bender, 

, 1284 (11th Cir. 2002). Because Brown

conceded in her § 2255 motion that her counsel consulted with her, and she agreed

not to file a notice of appeal, Brown’s counsel satisfied her constitutional duty to

consult with Brown. See Roe v. Flores-Ortega, 

, 480, 

,

1036 (2000) (“[C]ounsel has a constitutionally imposed duty to consult with the

defendant about an appeal when there is reason to think either (1) that a rational

defendant would want to appeal . . . or (2) that this particular defendant reasonably

demonstrated to counsel that he was interested in appealing.”). Additionally,

ineffective assistance of counsel also was not raised in Brown’s § 2255 motion, but



        3
          Even if the COA may be construed to ask whether Brown’s counsel was ineffective for
not filing an Anders brief, failure to do so cannot prejudice a client because, if a meritorious
issue exists, then counsel will be instructed to file a merits brief, and the client will be left in the
same position as if a merits brief had been filed initially. 

, 87 S.Ct. at
1400.

                                                   10
in the subsequent memorandum, and, because that claim does not relate back to the

claims in her § 2255 motion and was filed after the expiration of the Antiterrorism

and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1), statute of

limitations, it is time-barred. Therefore, Brown’s counsel was not ineffective in

failing to file a notice of appeal or an appellate brief.4

                                    III. CONCLUSION

       Brown has appealed her imprisonment after pleading guilty to conspiracy to

commit wire fraud, money laundering, and obstruction of justice. In her § 2255

motion, she contended that her counsel was ineffective for failing to file an appeal,

although her plea agreement contained an sentence appeal waiver provision, and,

upon advice from her counsel, Brown decided not to appeal. She also challenges

the restitution portion of her sentence. As we have explained, Brown is bound by

her plea agreement, restitution is not appropriately addressed in a § 2255 motion,

she knowingly signed her plea agreement, and she agreed with her attorney’s

advice not to file an appeal. Accordingly, Brown’s challenged sentence is

AFFIRMED.



       4
        To the extent Brown contends that her guilty plea was not voluntary and intelligent,
although such an argument is not precluded by her sentence appeal waiver, the record
demonstrates otherwise. See generally R3. Furthermore, the district judge did not address this
issue when he denied § 2255 relief, and the issue is outside the scope of the COA, which
precludes our consideration. 

.

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