[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
JULY 15, 2011
No. 11-10517 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:09-cr-00551-WSD-JFK-6
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JESUS RAMOS,
a.k.a. C-1,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 15, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Jesus Ramos appeals his sentence for conspiracy to possess with intent to
distribute at least five kilograms of cocaine, 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)
and 18 U.S.C. § 2. On appeal, Ramos argues that the district court clearly erred by
assessing a $15,000 fine. He also contends that the district court plainly erred by
failing to notify him that it was considering a sentence above his advisory
guideline range. Finally, Ramos asserts that the district court violated 18 U.S.C.
§ 3553(c)(2) by failing to provide a written statement of the reasons for his
above-guideline sentence. The government responds that Ramos’s challenge to
his fine is barred by the sentence appeal waiver in his plea agreement. For the
reasons stated below, we dismiss Ramos’s challenge to his fine and affirm his
sentence as to his term of imprisonment.
I.
A grand jury returned an indictment charging Ramos with conspiracy to
possess with intent to distribute at least 5 kilograms of cocaine, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A)(ii), and 18 U.S.C. § 2 (Count One),
and conspiracy to launder money, in violation of 18 U.S.C. § 1956(h) (Count
Two). Ramos entered into a written plea agreement in which he agreed to plead
guilty to Count One. Under the terms of the plea agreement, Ramos waived his
right to appeal his sentence on any ground, with two exceptions. First, Ramos
could “file a direct appeal of an upward departure or a variance from the
2
sentencing guideline range as calculated by the district court.” Second, Ramos
could file a cross-appeal if the government were to appeal his sentence.
At the plea colloquy, the district court summarized the terms of the appeal
waiver. The court observed that Ramos was giving up the right to appeal or
collaterally attack his sentence, with two exceptions:
And that is that if I were to impose a sentence that’s greater than what
the guidelines recommend, then you are free to appeal your sentence
only. Or if the government appeals your sentence, then you are free to
appeal your sentence only. But one of those two things has to happen
before you can appeal your sentence.”
Ramos acknowledged that he understood the appeal waiver. The district court
accepted Ramos’s guilty plea.
According to the presentence investigation report, Ramos, a truck driver,
transported drug proceeds for a cocaine-distribution organization headed by Jesus
Hector Flores. Ramos carried drug money on four different occasions. During the
last trip, the Georgia State Patrol stopped Ramos’s truck and seized three duffel
bags that contained over $2.5 million in cash.
At the sentencing hearing, the district court determined that Ramos had a
custody guideline range of 70 to 87 months’ imprisonment and a fine guideline
range of $12,500 to $4,000,000. The district court sentenced Ramos to a term of
100 months’ imprisonment. The court also imposed a $15,000 fine.
3
The district court explained that Ramos’s prison term was an “upward
departure” from the Sentencing Guidelines. The court stated that it had decided to
impose an above-guideline sentence in light of the amount of drug money that
Ramos had transported and the fact that he played a key role in “one of the most
substantial and dangerous organizations I have confronted[.]” The court
emphasized that many of Ramos’s co-conspirators had received substantial
sentences. The district court also pointed to the need for deterrence. The court
noted that Ramos had transported money for Flores on four different occasions
and likely would have made additional trips had he not been caught. The district
court concluded by stating, “[a]nd after having evaluated each of the 3553 factors,
that’s the sentence I intend to impose.” Defense counsel objected to the “upward
departure” from the guideline range and to the $15,000 fine.
II.
We review the validity of a sentence appeal waiver de novo. United States
v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). An appeal waiver will be
enforced if it was made knowingly and voluntarily. Id. at 1350-51. To establish
that an appeal waiver was knowing and voluntary, the government must show
either that (1) the district court specifically questioned the defendant about the
waiver during the plea colloquy, or (2) the record makes clear that the defendant
4
otherwise understood the full significance of the waiver. Id. at 1351.
Ramos contends that this case is similar to United States v. Wilken, 498 F.3d
1160 (10th Cir. 2007). In Wilken, the defendant waived his right to appeal his
sentence unless the district court were to impose a sentence greater than the
statutory maximum. Id. at 1164. During the plea colloquy, however, the district
court advised Wilken that he could appeal his sentence if it was “in violation of
the factors listed in the statute.” Id. The Tenth Circuit interpreted the waiver
consistently with the district court’s statements at the change-of-plea hearing, and
concluded that Wilken had not knowingly and voluntarily waived his right to
challenge the reasonableness of his sentence. Id. at 1168-69. The Tenth Circuit
reasoned that, just as a district court’s statements during the plea colloquy can
clarify the nature of an appeal waiver, any misstatements by the district court can
cause confusion about the nature and scope of the waiver, rendering it
unenforceable. Id. at 1168.
When interpreting a plea agreement, we give the language of the agreement
its ordinary and natural meaning. United States v. Rubbo, 396 F.3d 1330, 1334-35
(11th Cir. 2005). “Plea bargains . . . are like contracts and should be interpreted in
accord with what the parties intended.” Id. at 1334. Any ambiguities in the
agreement should be resolved in favor of the defendant. See United States v.
5
Pielago, 135 F.3d 703, 709-10 (11th Cir. 1998) (stating rule in context of proffer
agreements after noting that plea agreements are governed by the same principles).
In this case, Ramos’s challenge to his fine is barred by his sentence appeal
waiver. Ramos’s $15,000 fine is within the guideline range for a fine as calculated
by the district court, and the government has not filed an appeal. Therefore,
neither of the exceptions to the appeal waiver is applicable here.
Ramos’s appeal waiver is knowing and voluntary because the district court
specifically questioned him about the waiver during the plea colloquy. See
Bushert, 997 F.2d at 1351. Contrary to Ramos’s argument, the district court’s
description of the appeal waiver during the plea colloquy did not create any
ambiguity as to the issues that he could appeal. The district court stated that
Ramos could appeal his sentence if he received a sentence that was greater than
what the Guidelines recommended—in other words, he could appeal an upward
departure or upward variance. This was consistent with the terms of the appeal
waiver. The district court did not suggest that Ramos could appeal a fine that was
within the applicable guideline range. Thus, this case is distinguishable from
Wilken, where the district court clearly stated at the plea colloquy that the
defendant could appeal an issue that was barred by his appeal waiver. See Wilken,
498 F.3d at 1164.
6
Ramos’s other arguments concerning the appeal waiver likewise fail. First,
although the government agreed to recommend a sentence at the low end of the
guideline range at the sentencing hearing, the government did not waive the right
to raise any particular arguments on appeal. Thus, the government’s appellate
position is not a breach of its obligations under the plea agreement. Also, there is
no “fundamental justice” exception to the rule that appeal waivers are enforceable.
A valid appeal waiver precludes a defendant from raising even what appear to be
clearly meritorious issues. See United States v. Grinard-Henry, 399 F.3d 1294,
1296 (11th Cir. 2005) (“An appeal waiver includes the waiver of the right to
appeal difficult or debatable legal issues or even blatant error.”). Therefore, we
must enforce the appeal waiver and dismiss Ramos’s challenge to his fine.
III.
Ramos did not object below that the district court should have notified him
of its intent to impose an above-guideline sentence. Therefore, we are reviewing
this issue for plain error. See United States v. Valentine, 21 F.3d 395, 398 (11th
Cir. 1994) (applying plain error standard to district court’s failure to give notice of
a departure). Under the plain error standard, a defendant must show (1) error,
(2) that is plain, and (3) that affects substantial rights. United States v. Bonilla,
579 F.3d 1233, 1238 (11th Cir. 2009). If the defendant is able to satisfy all three
7
elements, we have discretion to correct an error that “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. at 1239
(quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123
L.Ed.2d 508 (1993)) (alteration in original).
A district court must provide the parties with reasonable notice that it is
contemplating a departure from the Sentencing Guidelines. Fed.R.Crim.P. 32(h).
No such notice is required, however, when the court imposes a variance based
upon the § 3553(a) factors. Irizarry v. United States, 553 U.S. 708, 715-16, 128
S.Ct. 2198, 2203-04, 171 L.Ed.2d 28 (2008). In determining whether an
above-guideline sentence is a departure or a variance, we examine the process that
the district court used in making its sentencing decision. United States v.
Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009). If the district court cited to a
specific departure provision in the Guidelines, then it is apparent that the court
intended to impose an upward departure. Id. On the other hand, if the district
court made a finding that the guidelines were inadequate, that suggests that the
defendant’s sentence is the result of a variance. Id.
In this case, although the district court described Ramos’s sentence as an
“upward departure,” the court’s explanation of its sentencing decision shows that
it actually intended to impose an upward variance. The district court did not cite
8
to a specific departure provision of the Sentencing Guidelines, nor did it increase
Ramos’s offense level, as it would have done if it were imposing a departure.
Instead, the district court discussed the nature and circumstances of the offense,
Ramos’s personal history and characteristics, the need for deterrence, the
seriousness of the offense, and the sentences received by Ramos’s co-conspirators,
all of which were factors under 18 U.S.C. § 3553(a). Finally, the district court
explained that it had reached its sentencing decision “after having evaluated each
of the 3553 factors.” Because the district court imposed a variance, not a
departure, it did not have to give notice of its intent to impose an above-guideline
sentence. See Irizarry, 553 U.S. at 715-16, 128 S.Ct. at 2203-04.
IV.
Ramos did not object below to the district court’s failure to provide a
written statement of reasons, as required by 18 U.S.C. § 3553(c)(2). Therefore, we
are reviewing that issue for plain error. Bonilla, 579 F.3d at 1238. If a district
court imposes a sentence that is outside the defendant’s guideline range, the court
must include a written explanation of the defendant’s sentence as part of the
written judgment. 18 U.S.C. § 3553(c)(2). The purpose of § 3553(c)(2) is to
allow for meaningful appellate review of a sentence. Cf. United States v.
Delvecchio, 920 F.2d 810, 813 (11th Cir. 1991) (explaining that the district court
9
must provide a statement of reasons under § 3553(c)(2) “so that the reviewing
court can determine whether the departure was justified.”).
In this case, the district court detailed the reasons for Ramos’s
above-guideline sentence on the record during the sentencing hearing. The court’s
oral explanation provided a sufficient basis for appellate review of Ramos’s
sentence. Therefore, the district court’s failure to enter a written statement of
reasons did not affect Ramos’s substantial rights.
For the foregoing reasons, we dismiss Ramos’s challenge to his fine and
affirm his 100-month term of imprisonment.
AFFIRMED IN PART AND DISMISSED IN PART.
10