USCA11 Case: 20-13219      Date Filed: 11/16/2020    Page: 1 of 4



                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 20-13219
                          Non-Argument Calendar
                        ________________________

              D.C. Docket No. 4:20-cr-00004-WMR-WEJ-1


UNITED STATES OF AMERICA,

                                                             Plaintiff - Appellee,

                                   versus

JANET PILCHER,

                                                           Defendant - Appellant.

                        ________________________

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

                            (November 16, 2020)

Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
          USCA11 Case: 20-13219       Date Filed: 11/16/2020   Page: 2 of 4



      Janet Pilcher appeals her sentence of 30 days of imprisonment after pleading

guilty to one count of embezzling from a labor organization, in violation of 29 U.S.C.

§ 501(c). The government has moved to dismiss the appeal on the ground that in

her plea agreement, Pilcher waived her right to appeal the sentence. Pilcher has not

responded to the government’s motion.

      In Pilcher’s plea agreement, she agreed to waive “the right to appeal her

conviction and sentence[,]” including through collateral attack, except for a claim of

ineffective assistance of counsel. The waiver provision permitted appeal in two

narrow circumstances: (a) if the district court imposed a sentence that exceeded the

guideline imprisonment range as determined by the district court, or (b) if the

government appealed. Pilcher and her counsel signed the plea agreement, including

the last page confirming that she read the agreement and that she reviewed each part

of it with her counsel.

      The district court accepted Pilcher’s guilty plea after conducting a plea

colloquy. During the plea colloquy, the court informed Pilcher of the appeal waiver

and its exceptions. Specifically, the court confirmed that Pilcher agreed with the

government’s description of her plea agreement by reading the appeal waiver to her

almost exactly as written. Pilcher responded that she understood the appeal waiver

in the plea agreement and that she would be bound by the court’s decision as to what

her sentence would be. Pilcher’s counsel also informed the court that she discussed


                                          2
           USCA11 Case: 20-13219      Date Filed: 11/16/2020   Page: 3 of 4



the appeal waiver with Pilcher and that they determined that it would be in Pilcher’s

best interest to agree to the appeal waiver in the plea agreement.

      After the plea hearing, a probation officer prepared a presentence

investigation report (“PSR”), calculating a recommended guideline range of 10-16

months in prison. Pilcher filed a sentencing memorandum requesting a sentence of

8 months’ home confinement with 3 years of probation.

      At sentencing, the government asked for a downward variance recommending

her guideline range to be 8-14 months’ imprisonment. After expressing concerns

about the sufficiency of deterrence, the court granted a downward variance and

sentenced Pilcher to 30 days in prison followed by 3 years of supervised release.

Pilcher now appeals, arguing that her sentence was procedurally unreasonable

because the district court failed to adequately consider all the 18 U.S.C. § 3553(a)

factors.

      We will enforce an appeal waiver that was made knowingly and voluntarily.

United States v. Bascomb, 

, 1294 (11th Cir. 2006); United States v.

Bushert, 

, 1350–51 (11th Cir. 1993). To prove that a waiver was made

knowingly and voluntarily, the government must show 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

significance of the waiver. 

.


                                          3
          USCA11 Case: 20-13219       Date Filed: 11/16/2020   Page: 4 of 4



      We will enforce the appeal waiver in Pilcher’s plea agreement. First, the

waiver was made knowingly and voluntarily. Pilcher verified by her signature that

she had read and understood the plea agreement, including the waiver. And during

the plea colloquy, the court specifically questioned Pilcher about the waiver. Pilcher

indicated that she understood the terms of the appeal waiver and that she had

discussed the entire plea agreement, including the waiver, with counsel. Pilcher also

confirmed that no one had threatened her, forced her, or promised her anything other

than what was in the plea agreement to induce her to plead guilty under the plea

agreement, including the appeal waiver. Accordingly, the record makes clear that

the waiver was made knowingly and voluntarily. See

to Pilcher’s appeal waiver do not apply. The district

court did not depart or vary upward from the guideline range it calculated; rather, it

varied downward. Pilcher also does not challenge her sentence on the grounds of

ineffective assistance of counsel, nor has the government appealed. Because no

exception applies, the waiver bars this appeal.

      For these reasons, we GRANT the government’s motion to dismiss Pilcher’s

appeal based on the appeal waiver in her plea agreement.

      APPEAL DISMISSED.




                                          4