UNITED STATES оf America, Plaintiff-Appellee, v. Anthony R. MASILOTTI, Defendant-Appellant.
No. 13-13753
United States Court of Appeals, Eleventh Circuit.
May 12, 2014.
566 F. App‘x 837
Non-Argument Calendar.
Paul David Lazarus, Law Offiсe of Paul D. Lazarus, Ft. Lauderdale, FL, Donald I. Bierman, Donald I. Bierman PL, Richard Carroll Klugh, Jr., Law Offices Of Richard C. Klugh, Howard M. Srebnick, David Stuart Weinstein, Clarke Silverglate, PA, Miami, FL, Barry E. Witlin, Attorney At Law, Plantation, FL, for Defendant-Appellant.
PER CURIAM:
Anthony Masilotti appeals the denial of his petition for a writ of audita querelа or, alternatively, for a writ of error coram nobis. Masilotti’s petition sought relief from the district court’s 2007 forfeiture order entered in Masilotti’s underlying criminal proceedings. The district court dismissed the petition because, inter alia, Masilotti waived his right to challenge the forfeiture in his plea agreement. After review, we affirm.1
On January 11, 2007, Masilotti pled guilty to conspiracy to commit honest services fraud and tax fraud. Pursuant to the written plea agreеment, Masilotti also agreed to forfeit certain assets listed in the plea agreement, including $9.5 million, various parcels of land, and Masilotti’s intеrests in a corporation, a land trust, a bank account and several certificates of deposit. As a result, on the same day as the рlea hearing, the district court entered a preliminary forfeiture order and later entered a final forfeiture order.
In 2013, Masilotti filed the instant рetition, arguing that the forfeiture subsequently was voided by Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), which held that the honest services fraud statutes reach only schemes to defraud the public thаt involve bribes or kickbacks. See Skilling, 561 U.S. at 407-09, 130 S.Ct. at 2931. The problem for Masilotti is that his written plea agreement contained a waiver not only of his right to apрeal the forfeiture order, but also of his right to bring any other challenge to the forfeiture in any judicial or administrative proceeding. Speсifically, in his written plea agreement, Masilotti agreed to waive certain “rights as to assets subject to forfeiture,” including, inter alia: (1) “all constitutional, legal and equitable defenses to the forfeiture of the assets in any judicial or administrative proceeding”; and (2) “to appeal any order of forfeiture entered” by the district court pursuant to the plea agreement.
Masilotti argues that his petition fаlls outside the scope of the forfeiture waiver because the waiver applied only to those assets that were “subject to forfеiture,” and, after Skilling, the assets are not properly subject to forfeiture. Masilotti’s argument lacks merit for several reasons. First, such an interpretation of the forfeiture waiver would be inconsistent with the other terms of the plea agreement. See United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.2005) (rejecting an interpretation of an appeal waiver that would be inconsistent with other terms of the plea agreement). The plea agreement contained a list of assets that Masilotti agreed were “subject to forfeiture” and were “property constituting, or derived from the proceeds of” the charged honest services fraud. Masilotti agreed to waive any right to bring future judicial challenges to the forfeiture of those listed assets on “constitutional, legal and equitable” grounds.
Second, such a broad waiver applies to the Skilling argument Masilotti now raises in this petition. See United States v. Howle, 166 F.3d 1166, 1169 (11th Cir.1999) (explaining that a waiver is enforceable even if it waives “difficult or debatable legal issues” or “blatant error”). Although Masilotti argues that the forfeiture waiver cannot bar a challenge based on a subsequent development in the law, this Court has reрeatedly upheld broad appeal waivers as long as they are knowing and voluntary. See United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.2005) (concluding that a broad sentence-appeal waiver included any grounds of appeal based on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); United States v. Buchanan, 131 F.3d 1005, 1009 (11th Cir.1997) (refusing to allow appeal of issues disputed at sentencing, but not exemрted from the sentence-appeal waiver). We agree with the district court, and the other circuits that addressed the issue, that a knowing and vоluntary waiver is valid and enforceable against claims based on subsequent changes in the law unless a provision in the plea agreement stаtes otherwise. See, e.g., United States v. Lockwood, 416 F.3d 604, 607-08 (7th Cir.2005);
We reject Masilotti’s alternative argument, raised for the first time on appeal, that his claim falls outside the scope of the forfeiture waiver because the plea agreement mistakenly referenced
For these reasons, the district court properly dismissed Masilotti’s petition as barred by the forfeiture waiver in his plea agreement.
AFFIRMED.