Appeal Waivers Enforced, Rule 11 Factual-Basis Challenges Allowed, and “Protective” Gun Possession Suffices for § 924(c)’s “In Furtherance” Element

Commentary on United States v. Mario Lenard Elbert, No. 24-10360 (11th Cir. Oct. 3, 2025) (unpublished)

Introduction

In this unpublished, per curiam decision on the Non-Argument Calendar, the Eleventh Circuit disposed of a three-issue criminal appeal arising from a guilty plea to drug and firearm offenses. The government sought partial dismissal based on an appeal waiver and partial summary affirmance. The panel (Judges Rosenbaum, Abudu, and Wilson) enforced the appeal waiver to bar a substantive reasonableness challenge, summarily rejected an Eighth Amendment claim, and summarily affirmed the sufficiency of the factual basis for a conviction under 18 U.S.C. § 924(c)(1)(A). Although designated “Not for Publication,” the opinion reinforces several recurring doctrines in federal criminal practice:

• Sentence appeal waivers that are explained during a Rule 11 colloquy are enforced as written.
• Eighth Amendment proportionality challenges to within-statutory-limits, below-guidelines sentences almost never succeed in the Eleventh Circuit.
• A defendant’s Rule 11 challenge to the sufficiency of the factual basis survives an appeal waiver, but absent an objection below, review is only for plain error.
• For § 924(c)(1)(A), evidence that a drug dealer carried a loaded firearm for protection in proximity to distributable quantities of drugs ordinarily suffices to establish the “in furtherance” nexus.

Summary of the Opinion

The court affirmed in part and dismissed in part:

• Substantive reasonableness challenge dismissed under a valid sentence-appeal waiver. The plea agreement’s waiver was knowingly and voluntarily entered and covered the challenge asserted.
• Eighth Amendment claim summarily affirmed. The 84-month sentence—24 months on the drug count plus the mandatory consecutive 60 months on § 924(c)—fell well within statutory limits and below the advisory guideline composite, defeating any threshold showing of gross disproportionality.
• Rule 11 factual-basis challenge to the § 924(c) count summarily affirmed under plain-error review. The combined facts—a loaded pistol found with matching ammunition, drug-packaging materials, and 54 grams of a fentanyl-containing mixture in Elbert’s immediate area after he fled a traffic stop, plus his admissions and the government’s proffer that an ATF agent would testify firearms are tools of the trade—provided a sufficient “in furtherance” nexus.

The court granted the government’s motion for partial dismissal (as to substantive reasonableness) and partial summary affirmance (as to the Eighth Amendment and Rule 11 claims).

Case Background

A 2022 indictment charged Mario Lenard Elbert with: possession with intent to distribute fentanyl (21 U.S.C. § 841(a)(1), (b)(1)(C)); possession of a firearm in furtherance of a drug-trafficking crime (18 U.S.C. § 924(c)(1)(A)(i)); two counts of felon-in-possession (18 U.S.C. §§ 922(g)(1), 924(a)(2)); and possession of a machinegun (18 U.S.C. §§ 922(o)(1), 924(a)(2)). Elbert pled guilty to the drug offense and the § 924(c) count via a written plea agreement containing a sentence-appeal waiver with limited exceptions (exceeding the guideline range or statutory maximum, or violating the Eighth Amendment; waiver lifted if the government appealed).

The undisputed factual proffer recounted that Elbert fled a traffic stop on foot after an officer observed suspected drug-packaging materials in his vehicle. Officers found him prone in nearby woods; in his immediate area, they recovered approximately 54 grams of a fentanyl-containing mixture, a pistol with a round chambered, a loaded magazine with matching ammunition, and another similar magazine in the car. The government also proffered that an ATF agent would testify generally that firearms are tools of the drug trade used for protection.

A magistrate judge conducted the Rule 11 colloquy with Elbert’s consent, confirmed his understanding of the charges, penalties, and waivers, and obtained express admissions, including that he possessed the firearm in furtherance of the drug-trafficking offense. The district court accepted the plea. The PSR calculated a guideline range of 37–46 months on the drug count (total offense level 21, CH I), and § 924(c) carried a mandatory consecutive minimum of 60 months. The court imposed a total of 84 months: 24 months on the drug count (a downward variance) plus 60 months consecutive under § 924(c). Elbert appealed, asserting (1) substantive unreasonableness; (2) Eighth Amendment disproportionality; and (3) insufficient factual basis for § 924(c).

Detailed Analysis

Precedents Cited and Their Influence

• Appeal Waivers
  • King v. United States, 41 F.4th 1363, 1366–67 (11th Cir. 2022): Validity and scope of appeal waivers are reviewed de novo; enforceable if knowing and voluntary.
  • United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993): The government must show either specific questioning during the Rule 11 colloquy about the waiver or that the record makes manifest the defendant understood its significance.
  • United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006): The Eleventh Circuit consistently enforces knowing and voluntary appeal waivers according to their terms.

  The court applied this line to hold that the magistrate judge’s colloquy sufficed to validate Elbert’s waiver and to conclude that a substantive reasonableness challenge did not fall within any exception.

• Eighth Amendment Proportionality
  • United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006): Relief from a noncapital sentence requires a threshold showing of gross disproportionality; sentences within statutory limits generally do not violate the Eighth Amendment.
  • United States v. Moriarty, 451 F.3d 1239, 1243 (11th Cir. 2006) (as cited): Emphasizes the general rule that within-statutory sentences are neither excessive nor cruel and unusual.
  • United States v. Suarez, 893 F.3d 1330, 1336 (11th Cir. 2018): The Eleventh Circuit has never held that a non-capital adult sentence violated the Eighth Amendment.
  • United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000): Every § 924(c)(1)(A) conviction carries a statutory maximum of life imprisonment.

  These authorities foreclosed Elbert’s claim where the total sentence was under both counts’ maxima (indeed, well below) and only 11 months above his own request.

• Rule 11 Factual Basis and “In Furtherance” for § 924(c)
  • United States v. Lopez, 907 F.2d 1096, 1100 (11th Cir. 1990): The district court’s task is to be presented with evidence from which it could reasonably find guilt; the factual basis prevents pleas grounded in mistaken understandings of the law.
  • United States v. Owen, 858 F.2d 1514, 1516–17 (11th Cir. 1988): No requirement of uncontroverted evidence; sufficiency not conflated with trial proof.
  • United States v. Puentes-Hurtado, 794 F.3d 1278, 1284–87 (11th Cir. 2015): An appeal waiver does not bar a Rule 11 claim that the plea lacks a sufficient factual basis; the panel applied prior-precedent rule to follow earlier cases allowing such challenges.
  • United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008): The court may affirm for any reason supported by the record.
  • United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002): Defines “in furtherance” as requiring that the firearm helped, furthered, promoted, or advanced the drug trafficking.
  • United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008): Provides factors for evaluating “in furtherance,” including type of gun, whether loaded, accessibility, proximity to drugs or profits, and the circumstances of possession.
  • United States v. Holmes, 141 F.4th 1183, 1199–1201 (11th Cir. 2025): Mere possession is insufficient, but evidence that a dealer carried a gun for protection while possessing drugs usually suffices to establish the nexus.

  These cases collectively supported the panel’s conclusion that the combined proffer and admissions—location of a loaded firearm with matching ammo near distributable fentanyl, plus the “tools of the trade” testimony—met the “in furtherance” element.

• Summary Disposition
  • Brown v. United States, 942 F.3d 1069, 1076 n.6 (11th Cir. 2019): Summary disposition is appropriate when the result is clear as a matter of law and no substantial question exists as to the outcome.

Legal Reasoning

1. Enforcement of the Appeal Waiver

   Reviewing de novo, the panel found the waiver valid and enforceable under Bushert and King. The magistrate judge specifically explained the waiver and its exceptions during the Rule 11 colloquy; Elbert confirmed understanding and voluntariness and initialed/signed the agreement. As the substantive reasonableness challenge was not within any exception, dismissal followed under Bascomb.

2. Eighth Amendment Claim Fails the Threshold Test

   Although the waiver reserved Eighth Amendment arguments, the panel held Elbert could not make the threshold showing of gross disproportionality, especially where:

   • The sentence was well within statutory limits—§ 924(c) authorizes up to life; § 841(b)(1)(C) authorizes up to 20 years.
   • The total 84-month sentence was below the composite advisory guidelines (37–46 months on Count One plus 60 months mandatory consecutive on Count Two) and only modestly above Elbert’s own request.
   • Eleventh Circuit precedent (Suarez) underscores the rarity of noncapital proportionality relief for adult offenders.

   The court characterized the government’s position as “clearly correct as a matter of law” and summarily affirmed.

3. Rule 11 Factual Basis for the § 924(c) Plea

   The court addressed the sufficiency claim despite the waiver, following Puentes-Hurtado and explaining in a footnote that it adhered to earlier precedents allowing Rule 11 factual-basis attacks on guilty pleas. Because Elbert did not object below, plain-error review applied.

   Applying Lopez/Owen and the § 924(c) “in furtherance” framework from Timmons, Woodard, and Holmes, the panel found the factual basis ample: Elbert fled a stop after suspected drug-packaging materials were observed; officers found him with a loaded pistol, a loaded magazine of matching ammunition, and 54 grams of fentanyl mixture; another similar magazine was in the car; and the government proffered standard law-enforcement testimony that dealers use guns for protection. Elbert also personally admitted during the colloquy that he possessed the firearm in furtherance of the drug-trafficking offense. That combination readily permits a reasonable finding of the required nexus—i.e., that the firearm advanced or facilitated the drug crime—defeating any claim of plain error. The court summarily affirmed on this ground.

Impact and Practical Implications

• Appeal Waivers Remain Robust: The decision underscores that detailed Rule 11 colloquies—whether conducted by a magistrate judge or district judge—render sentence-appeal waivers highly enforceable. Defense counsel should assume substantive reasonableness challenges will be dismissed unless carved out.
• Eighth Amendment Challenges Are Unlikely to Succeed: In the Eleventh Circuit, noncapital sentences within statutory ranges almost invariably withstand Eighth Amendment attacks. Below-guidelines sentences, in particular, are a poor vehicle absent truly extraordinary facts.
• Rule 11 Factual-Basis Challenges Can Be Raised Despite Waivers: The panel reaffirms the pathway left open by Puentes-Hurtado. However, failing to object in the district court triggers plain-error review, raising the bar significantly.
• § 924(c) “In Furtherance” Can Be Satisfied by Protective Possession: The court’s approval of a factual basis built on proximity to distributable quantities, loaded condition, matching ammunition, and “tools of the trade” testimony again signals that the nexus is not onerous when the circumstances fairly support a protection or facilitation rationale. Prosecutors should continue to develop such facts for the proffer; defense counsel should carefully scrutinize and, if appropriate, contest the nexus at the plea stage.
• Use of Summary Disposition: The court’s reliance on summary affirmance illustrates a willingness to resolve straightforward legal issues without full briefing where precedent clearly controls. Practitioners should anticipate and address potential summary-disposition motions when framing appellate issues.
• Timeliness and Preservation Matter: Elbert’s late-initiated, unrealized plea-withdrawal discussions and the absence of objections at sentencing shaped the standard of review and outcomes. Early and explicit objections are essential to preserve issues for de novo or abuse-of-discretion review.

Complex Concepts Simplified

• Sentence Appeal Waiver: A term in a plea agreement where a defendant agrees not to appeal the sentence on most grounds. It is binding if the court ensures the defendant understood it during the plea colloquy. Limited exceptions (like statutory-maximum or Eighth Amendment claims) may remain, depending on the agreement’s text.
• Plain Error Review: When a defendant did not object in the district court, the appellate court will reverse only if there is an error that is clear or obvious and that affected the defendant’s substantial rights; even then, the court will correct it only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• Summary Affirmance: A procedural device permitting the appellate court to affirm without full merits briefing when the law is clearly on one side and there is no substantial question about the outcome.
• “In Furtherance” (18 U.S.C. § 924(c)): The government must show the firearm helped advance or promote the drug-trafficking crime. Factors include whether the firearm was loaded, accessible, close to drugs or drug proceeds, and the circumstances indicating it was possessed for protection or to facilitate the crime—not merely coincidental presence.
• Within Statutory Limits vs. Guidelines: Statutes set absolute maximums and sometimes minimums (e.g., § 924(c)’s mandatory consecutive 60 months). The Sentencing Guidelines are advisory ranges informing but not dictating the sentence. A sentence within statutory boundaries, even if above or below the Guidelines, generally will not be “cruel and unusual.”
• Unpublished Opinions: Designated “Not for Publication,” these decisions are generally not binding precedent in the Eleventh Circuit but may be cited as persuasive authority. They often reflect settled law applied to the facts at hand.

Key Takeaways

• When appeal waivers are clearly explained, substantive challenges to the sentence will be dismissed unless expressly carved out.
• A below-guidelines, within-statutes sentence almost never meets the Eighth Amendment’s gross disproportionality threshold in the Eleventh Circuit.
• Rule 11 factual-basis attacks on a plea survive appeal waivers, but unpreserved claims face steep plain-error hurdles.
• For § 924(c), courts readily infer an “in furtherance” nexus from a loaded, accessible firearm in proximity to distributable drug quantities, particularly with admissions or expert proffers about firearms’ protective role in drug dealing.
• Government motions for summary disposition will be granted where controlling law is clear; appellants should tailor issues accordingly.

Conclusion

United States v. Elbert exemplifies the Eleventh Circuit’s settled approach to three recurring appellate issues in federal criminal cases. First, robust Rule 11 colloquies make sentence-appeal waivers stick, barring most sentencing challenges. Second, Eighth Amendment proportionality claims aimed at within-limit sentences—especially those below the advisory range—are nonstarters in this circuit. Third, a § 924(c) conviction premised on a factual proffer that marries a loaded, accessible firearm to distributable drug quantities and a protective rationale will comfortably meet the “in furtherance” requirement, particularly when the defendant admits the nexus during the plea. Although unpublished, Elbert coherently synthesizes Eleventh Circuit doctrine on appeal waivers, proportionality review, and the § 924(c) nexus, offering clear guidance for plea negotiations, sentencing strategy, and issue preservation on appeal.