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March 27, 2026 Get Citation Alerts Download PDF Add Note

United States v. Kimberly Kiehl

Court of Appeals for the Eleventh Circuit

• Citations: None known
• Docket Number: 25-12355
• Precedential Status: Non-Precedential

• Nature of Suit: NEW

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (526)

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Combined Opinion

USCA11 Case: 25-12355 Document: 36-1 Date Filed: 03/27/2026 Page: 1 of 8

NOT FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

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No. 25-12355
Non-Argument Calendar

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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

KIMBERLY KIEHL,
Defendant-Appellant.

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Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cr-00441-CEH-LSG-1

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Before BRASHER, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Kimberly Kiehl appeals her conviction and 24-month sen-
tence for mail fraud and selling counterfeit drugs in violation of 18
U.S.C. § 1341 and 21 U.S.C. §§ 331 (i)(3), 333(a)(2). She pleaded
USCA11 Case: 25-12355 Document: 36-1 Date Filed: 03/27/2026 Page: 2 of 8

2 Opinion of the Court 25-12355

guilty and agreed to waive her right to appeal. She argues that her
guilty plea was not knowing and voluntary, and that her sentence
appeal waiver is unenforceable. We affirm.
I.

According to the plea agreement, Kiehl sold misbranded and
counterfeit drugs and medical devices that lacked FDA approval.
She was charged with two counts of mail fraud, two counts of in-
troduction of misbranded drugs and devices, and two counts of
trafficking in counterfeit drugs and medical devices. She initially
pleaded not guilty.
Kiehl asserted that she was not competent to stand trial due
to a prior traumatic brain injury. She successfully moved to appoint
an expert to conduct an independent psychiatric evaluation. The
court-appointed psychologist concluded that Kiehl was “not com-
petent to proceed to trial related to her apparent cognitive defects.”
The court ordered Kiehl hospitalized for four months pending fur-
ther evaluation.
At the hospital, Kiehl attended weekly competency restora-
tion classes and underwent a series of cognitive assessments. At the
end of the program, she was evaluated by another psychologist,
Dr. Jordana Pepper. Dr. Pepper concluded that Kiehl was compe-
tent to stand trial. She noted Kiehl had “sound factual knowledge
and rational understanding of court proceedings,” was “able to ef-
fectively engage in reciprocal communication,” and had “demon-
strated vast improvements over the course of her competency
treatment.”
USCA11 Case: 25-12355 Document: 36-1 Date Filed: 03/27/2026 Page: 3 of 8

25-12355 Opinion of the Court 3

Following her release from the hospital, Kiehl entered into
a plea agreement with the government, in which she pleaded guilty
to one count of mail fraud and one count of selling counterfeit
drugs. According to the plea agreement, Kiehl “expressly waive[d]
the right to appeal [her] sentence on any ground, including the
ground that the Court erred in determining the applicable guide-
lines range pursuant to the United States Sentencing Guidelines.”
The only exceptions were if her sentence exceeded the guidelines
range, exceeded the statutory maximum, or violated the Eighth
Amendment, or if the government appealed. Kiehl signed every
page of her plea agreement.
The parties attended a change-of-plea hearing before a mag-
istrate judge. At the hearing, Kiehl’s counsel affirmed that Kiehl
was competent and that any issues had “been resolved.” The mag-
istrate judge then conducted a lengthy plea colloquy, in which
Kiehl stated that she understood her rights, the consequences of
pleading guilty, and the charges against her. Kiehl confirmed that
she understood her plea agreement and intended to plead guilty.
The magistrate judge also reviewed her sentence appeal waiver
and confirmed she understood the terms. At the end of the collo-
quy, the magistrate judge found that Kiehl’s decision to plead guilty
was made “freely, voluntarily, knowingly, and intelligently.” The
magistrate judge accepted the plea, declared her intention to pro-
vide a written report and recommendation to the district judge,
and informed Kiehl that she would have fourteen days to object to
the report and recommendation.
USCA11 Case: 25-12355 Document: 36-1 Date Filed: 03/27/2026 Page: 4 of 8

4 Opinion of the Court 25-12355

In her report and recommendation, the magistrate judge re-
counted the plea colloquy and concluded that Kiehl was compe-
tent. Specifically, she explained that “[a]fter cautioning and exam-
ining the defendant under oath about each subject in Rule 11, I de-
termined that the defendant’s guilty plea is knowing and voluntary
. . . . Therefore, I recommend accepting the plea of guilty, adjudi-
cating the defendant guilty, and imposing a sentence.” The report
and recommendation notified the parties that they had fourteen
days to file written objections under 28 U.S.C. § 636 (b)(1). It stated
that failure to timely object would result in waiving the right to
challenge the district court’s adoption of the report and recommen-
dation. See 11th Cir. R. 3-1.
After the deadline passed without any party filing an objec-
tion, the district court formally accepted Kiehl’s guilty plea. The
court then held a sentencing hearing, at which Kiehl’s counsel
again confirmed that she was competent. The district court varied
downwards and imposed a sentence of twenty-four months in
prison.
Kiehl timely appealed.
II.

In the absence of a proper objection to a magistrate judge’s
report and recommendation, we may review for plain error “if nec-
essary in the interests of justice.” Smith v. Marcus & Millichap, Inc.,
106 F.4th 1091, 1098 (11th Cir. 2024) (quoting 11th Cir. R. 3-1);
United States v. Graham, 123 F.4th 1197, 1240 n.6 (11th Cir. 2024)
(applying Rule 3-1 in a criminal case). We may reverse the district
USCA11 Case: 25-12355 Document: 36-1 Date Filed: 03/27/2026 Page: 5 of 8

25-12355 Opinion of the Court 5

court for plain error if we find four things: “First, there must be an
error. Second, the error must be plain. Third, the error must affect
substantial rights of the defendant. Fourth, the error must seriously
affect the fairness, integrity, or public reputation of a judicial pro-
ceeding.” United States v. Carpenter, 803 F.3d 1224, 1238 (11th Cir.
2015).
The determination of whether a defendant knowingly and
voluntarily waived her right to appeal her sentence is reviewed de
novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993).
III.

Kiehl argues that we should reverse the district court be-
cause her guilty plea was not knowing and voluntary, and because
it was induced by her attorney. She also argues that her sentence
appeal waiver is unenforceable due to her “mental health issues.”
We disagree.
First, Kiehl waived her objection to the district court’s ac-
ceptance of her guilty plea. Following the change-of-plea hearing,
the magistrate judge “found that the defendant was competent to
proceed with a guilty plea” and determined that Kiehl’s guilty plea
was knowing and voluntary. At the hearing, the magistrate judge
expressly warned Kiehl that she had fourteen days to object to the
recommendation. The report and recommendation itself notified
her that failing to object would waive her right to challenge both
“unobjected-to factual findings and legal conclusions.” When the
deadline came and went, the district court properly accepted
Kiehl’s guilty plea.
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6 Opinion of the Court 25-12355

Under Local Rule 3-1, a party failing to object to a magistrate
judge’s proposed findings contained in a report and recommenda-
tion “waives the right to challenge on appeal the district court’s or-
der based on unobjected-to factual and legal conclusions if the
party was informed of the time period for objecting and the conse-
quences on appeal for failing to object.” 11th Cir. R. 3.1. See also
Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d 1185, 1191
(11th Cir. 2020) (explaining that we will apply Rule 3-1 only where
the party was given “clear notice” of the time period for objections
and the consequences of failing to object). 1 Here, the magistrate
judge informed Kiehl of the fourteen-day objection period and that
failing to object would result in waiver of both factual and legal
objections. Because Kiehl did not object to the report and recom-
mendation, including its findings that she was competent and that
her plea was knowing and voluntary, her objections based on those
findings are waived.
Because she did not properly object to the report and rec-
ommendation, Kiehl requests that we review her claim under the

1 We note that a party’s failure to object to a report and recommendation on

a dispositive order in a criminal case, which is later adopted by the district
judge, does not raise the same problem as a party’s failure to seek a district
judge’s review of a magistrate judge’s non-dispositive order, which a district
judge need not adopt or otherwise address absent an objection. See O’Neal v.,
American Shaman Franchise Sys., 166 F.4th 1274, 1281–1283 (11th Cir. 2026)
(noting that we lack jurisdiction over a criminal appeal in which the district
judge has had no opportunity to review the challenged magistrate judge’s or-
der); United States v. Schultz, 565 F.3d 1353, 1362 (11th Cir. 2009) (same); United
States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003) (same).
USCA11 Case: 25-12355 Document: 36-1 Date Filed: 03/27/2026 Page: 7 of 8

25-12355 Opinion of the Court 7

plain error standard. In the absence of a proper objection to a re-
port and recommendation, we may “review . . . for plain error if
necessary in the interests of justice.” 11th Cir. R. 3-1. Even assum-
ing justice requires plain error review, the district court’s ac-
ceptance of Kiehl’s guilty plea was not erroneous. Dr. Pepper’s ex-
tensive psychological report established that Kiehl was fully com-
petent to stand trial. Kiehl’s attorney conceded that she was com-
petent at both the change-of-plea and sentencing hearings. Alt-
hough Kiehl contends that her “mental health issues” should have
precluded acceptance of the plea, an allegation of mental illness or
disability does not invalidate a guilty plea if the defendant was oth-
erwise competent to enter it. United States v. Rodriguez, 751 F.3d
1244, 1252 (11th Cir. 2014).
Kiehl also argues that she pleaded guilty only because her
attorney told her to, but she did not raise this issue before the dis-
trict court. And we ordinarily do not entertain ineffective assistance
of counsel claims raised for the first time on direct appeal. See
United States v. Flanders, 752 F.3d 1317, 1343 (11th Cir. 2014). The
sole exception, for cases where the record is “sufficiently devel-
oped” to permit review, does not apply here. Id. We therefore con-
clude that the district court did not plainly err in accepting Kiehl’s
guilty plea.
Second, Kiehl’s sentence appeal waiver is enforceable. A sen-
tence appeal waiver must be knowing and voluntary to be effec-
tive. Bushert, 997 F.2d at 1350. In order to prevail in its argument
that we should enforce a sentence appeal waiver, the government
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8 Opinion of the Court 25-12355

must show that either (1) the district court specifically questioned
the defendant concerning the sentence appeal waiver during the
Rule 11 colloquy, or (2) it is manifestly clear from the record that
the defendant otherwise understood the full significance of the
waiver. Id. at 1351. The government need establish only one of the
two requirements. Id. The “touchstone” for assessing whether an
appeal waiver was made knowingly and voluntarily is whether the
court clearly conveyed to the defendant that she was giving up her
right to appeal under most circumstances. United States v. Boyd, 975
F.3d 1185, 1192 (11th Cir. 2020).
During the change-of-plea hearing, the magistrate judge spe-
cifically questioned Kiehl concerning the sentence appeal waiver.
She explained that Kiehl was waiving her right to appeal “except
on four narrow grounds.” The magistrate judge then discussed the
four grounds (none of which apply in this case) and explained Kiehl
was waiving her right to appeal “on all other grounds . . . including
that the district judge made a mistake in calculating [the] sentenc-
ing guidelines range.” The magistrate confirmed with Kiehl that
she understood the appeal waiver. Kiehl agreed to be bound by it.
The court thus made clear that Kiehl was giving up her right to
appeal under most circumstances. Boyd, 975 F.3d at 1192. The
waiver is therefore enforceable.
IV.

AFFIRMED.