Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:10-cr-00505-SCJ-ECS-1.
For United States of America, Plaintiff - Appellee: Ryan Scott Ferber, Erin Sanders, Suzette A. Smikle, Lawrence R. Sommerfeld, Sally Yates, U.S. Attorney's Office, Atlanta, GA.
For Terry Tyrone Hardman, a.k.a.: Terry Hardman, Defendant - Appellant: Larry David Wolfe, L. David Wolfe, PC, Atlanta, GA.
Before HULL, MARCUS and DUBINA, Circuit Judges.
DUBINA, Circuit Judge:
This appeal comes before us on a motion to dismiss based on the appeal waiver contained in Appellant Terry Hardman's plea agreement. Because we conclude that Hardman's appeal waiver does not cover his appeal of the district court's Rule 35(b) sentence modification, we deny the motion.
In 2011, Hardman pleaded guilty to conspiring to possess five kilograms of cocaine with the intent to distribute it. His plea agreement included a general waiver of appeal.
To the maximum extent permitted by federal law, [Hardman] voluntarily and expressly waives the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding (including, but not limited to, motions filed pursuant to Title 28, United States Code, Section 2255) on any ground, except that [Hardman] may file a direct appeal of an upward departure or an upward variance from the sentencing Guideline range as calculated by the District Court.
(DE 44-1 at 11.) The agreement further provided that a government appeal would release Hardman from his waiver. Hardman signed the plea agreement, verifying that he read and understood it, discussed it with his attorney, and voluntarily agreed to it. His attorney and the Assistant United States Attorney also signed the plea agreement.
During the colloquy at Hardman's plea hearing, the district court specifically addressed the appeal waiver. The court asked Hardman if he understood " that as part of [his] plea agreement," he was " giving up [his] right to appeal [his] sentence unless there is an upward departure from the Guidelines or an appeal by the government." (Plea Hearing Transcript at 21.) Hardman told the court he understood and denied that anyone " used any force, threat of force," or promises other than the plea agreement to induce ...