United States v. Winfred Davez Odom

         USCA11 Case: 20-10426    Date Filed: 12/30/2020   Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 20-10426
Non-Argument Calendar
________________________

D.C. Docket No. 1:17-cr-00111-KD-MU-3

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WINFRED DAVEZ ODOM,

Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Southern Distric

         USCA11 Case: 20-10426    Date Filed: 12/30/2020   Page: 1 of 9



                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 20-10426
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 1:17-cr-00111-KD-MU-3



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

WINFRED DAVEZ ODOM,

                                               Defendant - Appellant.

                        ________________________

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

                            (December 30, 2020)

Before LAGOA, BRASHER and DUBINA, Circuit Judges.

PER CURIAM:
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      Appellant, Winfred Odom, appeals the district court’s imposition of a 120-

month total sentence following his conviction for conspiracy to distribute and

possess with intent to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 846. On appeal, Odom contends that the government breached its

plea agreement by failing to file a substantial assistance motion due to Odom’s

alleged violation of the plea agreement and that the district court erred by not

requiring the government to present evidence to support the allegation that Odom

violated the plea agreement. Based on our review of the record, we conclude that

the government did not breach the plea agreement, and the district court did not

commit any error as asserted by Odom. Accordingly, we affirm the district court’s

imposition of Odom’s 120-month sentence and dismiss in part to the extent that

Odom directly challenges the government’s failure to file a substantial assistance

motion or otherwise challenges the sentencing proceedings.

                                          I.

      In May 2017, a grand jury indicted Odom with conspiracy to distribute and

possess with intent to distribute methamphetamine (Count 1) and possession with

intent to distribute methamphetamine (Count 2). Odom pleaded guilty to Count 1

pursuant to a written plea agreement. The agreement gave the government the sole

discretion to determine whether it wanted Odom to cooperate and whether it would

file a substantial assistance motion. (R. Doc. 64.) The agreement also provided, in

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part that Odom had to provide “full, complete, truthful and substantial cooperation”

to the government that resulted in “substantial assistance to the [government] in the

investigation or prosecution of another criminal offense, a decision specifically

reserved by the [government] in the exercise of its sole discretion,” in order for the

government to move for a downward departure based on substantial assistance. (Id.

at 9.) The agreement further stated that Odom understood that if he provided

untruthful information to the government at any time, failed to disclose material facts

to the government, or committed a new criminal offense, the government would not

make a motion for downward departure. (Id.)

      In the agreement, Odom agreed to waive his right to directly appeal or

collaterally attack his guilty plea, conviction, or sentence unless his sentence

exceeded the statutory maximum or constituted an upward departure or variance

from the advisory guideline range. Odom reserved the right to raise a claim of

ineffective assistance of counsel in a direct appeal or a 28 U.S.C. § 2255 motion.

Additionally, if the government filed an authorized appeal, Odom would be released

from the appeal waiver. Moreover, Odom agreed that if he breached the agreement,

all provisions would remain enforceable against him, but the government would be

free from its obligations. (Id. at 12–13.)

      During the plea colloquy, Odom stated that he could read and understand

English, had graduated high school, had never been treated for mental illness or drug

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addiction, and was not presently under the influence of any drug, alcohol, or

medication.    (Doc. 160 at 2–3.)      Odom confirmed that he had no problem

communicating with his attorney. The district court addressed the substantial

assistance provision of the plea agreement, asking Odom if he understood that it was

the United States Attorney’s office personnel who determined whether he had

substantially cooperated, not the court, and Odom responded in the affirmative. (Id.

at 4.) The district court further inquired of Odom if he understood that it was not

certain that he would receive a substantial assistance motion, and Odom responded

yes. The district court further clarified by asking, “Even if you come in here and tell

me all the great things that you did, that you think that you deserve a 5K, unless the

United States agrees with you, then you don’t get a 5K. Do you understand that?”

Odom responded that he understood. (Id. at 5.) The district court then clarified with

Odom that he understood that he was waiving his right to appeal except in a few

limited circumstances. (Id. at 6.) The district court further explained the potential

penalties that Odom faced, including a mandatory minimum sentence of ten years to

life, and he confirmed that he understood.

      In the presentence investigation report (“PSI”), the probation officer assigned

Odom a base level offense of 32 pursuant to U.S.S.G. § 2D1.1(c)(4) because Odom

was responsible for 480 grams of methamphetamine. After applying reductions due

to acceptance of responsibility and assistance, the probation officer assigned an

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offense level of 29. Due to Odom’s criminal history, the probation officer assigned

him a criminal history category of III. Based on the offense level and criminal

history category, the statutory minimum of imprisonment was 10 years and the

statutory maximum was life; however, the guideline range was 108 to 135 months.

Pursuant to U.S.S.G. § 5G1.1(c)(2), because the 10-year statutory minimum was

greater than the minimum guidelines range, the guidelines range became 120 to 135

months. Odom had no objections to the PSI.

      Before sentencing, Odom moved to enforce the plea agreement, arguing that

the government recently informed him that it would not be filing a substantial

assistance motion. He stated that the government alleged that he had been making

“side drug deals,” and he thought that was the reason why the government was not

filing the motion. Odom urged the district court to enforce the plea agreement or

otherwise require the government to prove that he breached the agreement by

committing another crime. The government opposed Odom’s motion to enforce,

asserting that it had obtained substantial credible evidence from two law

enforcement officers that Odom had been selling drugs in violation of the

cooperation provision of his plea agreement. (R. Doc. 155.) The government

emphasized that it had the sole discretion whether to file the substantial assistance

motion and that the district court lacked authority to review the issue absent evidence




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that the government acted with an unconstitutional motive. It also noted that Odom

understood the terms of the plea agreement, as evidenced in the plea colloquy.

      The district court found that, absent a constitutional violation, of which there

was no evidence, it had no authority to question the government’s discretion over its

decision not to file the substantial assistance motion. The district court then stated

that Odom’s offense level was 29, his guideline range was 120 to 135 months, and

the statutory mandatory minimum was 10 years. Odom requested a sentence at the

low end of the guidelines, and the government recommended the 10-year mandatory

minimum.     Subsequently, the district court imposed the minimum 120-month

sentence followed by a 5-year term of supervised release. The government moved

to dismiss Count 2, which the district court granted.

                                         II.

      This court reviews de novo the validity of a sentence appeal waiver. United

States v. Johnson, 

541 F.3d 1064

, 1066 (11th Cir. 2008). We also review de novo

whether the government breached a plea agreement. United States v. De La Garza,

516 F.3d 1266

, 1269 (11th Cir. 2008).

      We will enforce a sentence appeal waiver if it was made knowingly and

voluntarily. United States v. Bushert, 

997 F.2d 1343

, 1350 (11th Cir 1993). To

establish that the waiver was made knowingly and voluntarily, the government

must show either that (1) the district court specifically questioned the defendant

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about the waiver during the plea colloquy, or (2) the record makes clear that the

defendant otherwise understood the full significance of the waiver.

Id. at 1351.

We will enforce an appeal waiver where the district court specifically questioned

the defendant during the plea colloquy about the appeal waiver, adequately

explained the full significance of the appeal waiver, and confirmed that the

defendant understood the waiver’s significance. United States v. Grinard-Henry,

399 F.3d 1294

, 1296 (11th Cir. 2005). The waiver of the right to appeal also

includes the waiver of the right to appeal difficult or debatable legal issues or even

blatant errors.

Id. However, a waiver

will not bar a claim that the government

breached a plea agreement. United States v. Hunter, 

835 F.3d 1320

, 1324 (11th

Cir. 2016).

      The first step in determining whether the government breached a plea

agreement is to “determine the scope of the government’s promises.” United

States v. Copeland, 

381 F.3d 1101

, 1105 (11th Cir. 2004). A court determines

whether the government violated the agreement by considering the defendant’s

“reasonable understanding” of the agreement at the time that he entered the plea.

United States v. Rewis, 

969 F.2d 985

, 988 (11th Cir. 1992). The government may

motion the district court to depart from the guideline range based on a defendant’s

substantial assistance in the investigation or prosecution of another person. See 18

U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The government’s exercise of discretion in

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whether to file such a motion is only subject to judicial review if it is based on an

unconstitutional motive or is not rationally related to a legitimate government end.

Wade v. United States, 

504 U.S. 181

, 185–86, 

112 S. Ct. 1840

, 1843–44 (1992).

See also United States v. Forney, 

9 F.3d 1492

, 1502 n.5 (11th Cir. 1993) (stating

that “our consideration of the government’s refusal to make a 5K1.1 motion, where

a specific contractual agreement to file a substantial assistance motion is not

involved, [is] limited to those cases in which a constitutionally impermissible

motive has been alleged”). “A defendant who merely claims to have provided

substantial assistance or who makes only generalized allegations of an improper

motive is not entitled to a remedy or to even an evidentiary hearing.” United

States v. Dorsey, 

554 F.3d 958

, 960–61 (11th Cir. 2009).

                                         III.

      As an initial matter, the scope of our review depends on whether Odom’s

appeal waiver is enforceable, and we conclude from the record that it is. Odom

waived his right to appeal, and he does not meet the waiver’s exceptions because

the district court did not exceed a statutory maximum sentence or exceed the

guideline range. When the district court took Odom’s guilty plea, it asked

specifically about the waiver and the limited exceptions that would allow an

appeal, and Odom confirmed that he understood, satisfying the requirements to

enforce the waiver. See 

Bushert, 997 F.3d at 1351

. Thus, we dismiss his appeal to

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the extent that he challenges anything other than the government’s alleged breach

of the plea agreement. However, to the extent that Odom argues that the

government breached the plea agreement, we can review the claim,

notwithstanding the appeal waiver. See 

Hunter, 835 F.3d at 1324

.

      Based on our review of the record, we conclude that the government did not

breach the plea agreement because it did not have a duty to file a substantial

assistance motion either under the plea agreement or the governing law. See

Copeland, 381 F.3d at 1105

; 

Dorsey, 544 F.3d at 960

–61. The plea agreement

reserved the determination of whether Odom substantially assisted the government

to its sole discretion. The plea agreement also stated that the government would

not file a motion if Odom committed a new offense. When the district court

emphasized the government’s discretion with regard to the motion, Odom

confirmed that he understood. Furthermore, Odom had to allege and show that the

government acted with an unconstitutional motive, which he has not done.

      Accordingly, for the aforementioned reasons, we dismiss the appeal in part,

and affirm the district court’s imposition of Odom’s 120-month total sentence.

      AFFIRMED IN PART AND DISMISSED IN PART.




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