United States v. Marquis Kewon Oliver

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USCA11 Case: 22-10491 Document: 50-1 Date Filed: 03/14/2024 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 22-10491 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiﬀ-Appellee, versus MARQUIS KEWON OLIVER, a.k.a. Fred,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:19-cr-00167-TFM-MU-1

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4 Opinion of the Court 22-10491

offender. See United States v. Campbell, 26 F.4th 860, 871 (11th Cir. 2022). Even if Oliver had challenged his designation as a career of- fender, his appeal waiver would be unaffected by the government’s harmless breach of the separate safety-valve provision of the plea agreement, and he does not dispute that he knowingly and volun- tarily waived his right to appeal his sentence except in limited cir- cumstances that do not apply. See United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). We AFFIRM Oliver’s conviction and sentence.

Footnotes

[2] Opinion of the Court 22-10491 ____________________ Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and BRANCH, Circuit Judges. PER CURIAM: Marquis Oliver appeals his sentence of 188 months of im- prisonment imposed after he pleaded guilty to conspiring to pos- sess with intent to distribute a controlled substance. 21 U.S.C. § 846. After Oliver’s appointed appellate counsel moved to with withdraw and filed a brief pursuant to Anders v. California, 386 U.S.

[738] (1967), we denied counsel’s motion without prejudice because counsel’s brief omitted three issues: whether the government breached the plea agreement by objecting to Oliver’s eligibility for safety-valve relief, 18 U.S.C. § 3553(f); whether Oliver was eligible for safety-valve relief or whether his appeal should be held in abey- ance pending our en banc rehearing of United States v. Garcon, 997 F.3d 1301 (11th Cir. 2021), rev’d en banc, 54 F.4th 1274 (11th Cir. 2022); and whether Oliver’s prior convictions qualified as crimes of violence for the career offender enhancement, United States Sen- tencing Manual § 4B1.1 (Nov. 2018). Oliver responded by filing a merits brief. We affirm. We ordinarily review whether the government breached a plea agreement de novo. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). But when a defendant failed to object to an alleged breach in the district court, he must establish not only that an error occurred that was plain, but that the error affected his 22-10491 Opinion of the Court 3 substantial rights by “show[ing] a reasonable probability that, but for the error,” the outcome of his proceeding would have been dif- ferent. United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004); see Puckett v. United States, 556 U.S. 129, 135 (2009). Oliver argues that the government breached a provision of the plea agreement that prohibited it from objecting to his argu- ment that he was eligible for the safety valve despite his prior con- victions, but he concedes that he was nevertheless ineligible for safety valve relief because he refused to provide necessary debrief- ing information to the government. See 18 U.S.C. § 3553(f)(5) (re- quiring the defendant to have “truthfully provided to the Govern- ment all information and evidence the defendant has concerning the offense”). Because Oliver concedes that his sentence was unaf- fected by the alleged breach, he cannot establish plain error. See Puckett, 556 U.S. at 135, 142 n.4; Garcon, 54 F.4th at 1279 (explaining that “the sentencing court must find that a defendant satisfies each of subsections (f)(1) through (f)(5)” to be eligible for safety-valve relief (emphasis added)). Regarding his designation as a career offender, Oliver asserts that his “Prior Assault-related Convictions Qualified as Crimes of Violence for Purposes of the Career Offender Enhancement.” Oli- ver explains that trial counsel objected that Oliver’s convictions for attempted first-degree assault, ALA. CODE § 13A-6-20, and two counts of second-degree assault against a police officer, id. § 13A-6- 21, should not qualify as crimes of violence, but Oliver offers no argument that the district court erred in sentencing him as a career