United States v. Terry Tyrone Hardman, 778 F.3d 896

Hardman pleaded guilty in 2011 to a cocaine-conspiracy charge and signed a plea agreement that included a broad waiver of appeal for his “conviction and sentence,” with limited exceptions for upward departures/variances and government appeals.
The district court conducted a Rule 11 colloquy in which it confirmed Hardman understood the appeal waiver; the court accepted the plea and later imposed a 235-month term (below statutory minimum based on substantial assistance).
The government filed a Rule 35(b) motion reducing Hardman’s sentence to 223 months, and later filed a second Rule 35(b) motion seeking a further reduction to 188 months; the court granted the second motion and set the sentence at 188 months.
Hardman timely appealed the district court’s ruling on the second Rule 35(b) motion; the government moved to dismiss the appeal under the plea-agreement appeal waiver.
The panel reviewed whether the waiver was validly made and whether its scope unambiguously covered appeals of Rule 35(b) sentence modifications.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hardman validly and knowingly waived appellate rights	Hardman admitted waiver was knowing/voluntary but contended it did not cover Rule 35(b) modifications	Government asserted the waiver was valid and precluded the appeal	Court: Waiver was knowingly and voluntarily made (colloquy satisfied Rule 11), so valid
Whether the appeal waiver bars an appeal of a Rule 35(b) sentence modification	Waiver does not reach Rule 35(b) modifications because such motions are separate postsentencing proceedings that create a new, appealable sentence	Waiver of “sentence” should be read to include any modification of that sentence, including Rule 35(b) reductions	Court: The term “sentence” in the plea agreement is ambiguous as to postjudgment Rule 35(b) modifications; construing ambiguity against the government, the waiver does not bar Hardman’s appeal

United States v. Johnson, 541 F.3d 1064 (11th Cir.) (appeal-waiver validity reviewed de novo)
United States v. Weaver, 275 F.3d 1320 (11th Cir.) (requirements for enforcing appeal waivers)
United States v. Copeland, 381 F.3d 1101 (11th Cir.) (ambiguities in plea agreements construed against the government)
United States v. Carruth, 528 F.3d 845 (11th Cir.) (appeal waiver did not cover supervised-release revocation)
United States v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir.) (Rule 35(b) ruling constitutes an otherwise appealable final sentence)
United States v. Moreno, 364 F.3d 1232 (11th Cir.) (Rule 35(b) triggers a separate proceeding)