[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 13, 2005
No. 04-12910 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00437-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNAL ALBERTO HENRY-HOWARD,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 13, 2005)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Pursuant to a plea agreement, appellant pled guilty to possession with intent
to distribute five kilograms or more of cocaine, in violation of 46 U.S.C. app.
§ 1903(a), and the court sentenced him to 108 months’ imprisonment. He now
appeals his sentence, challenging it on the following grounds:
1) the district court infringed his Fifth and Sixth Amendment rights by
setting his offense level at 38, based on the quantity of drugs involved in the
offense. According to him, because the indictment charged only that more than 5
kilograms of cocaine were involved in the offense, the court was precluded from
finding that approximately 2,038 kilograms were involved.
2) the Sentencing Guidelines are unconstitutional, under Blakely v.
Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).1 Thus, his
sentence must be vacated and his case remanded for resentencing.
3) the court abused its discretion by denying his requests for a minor-role
reduction of his offense level, and an additional two-level downward departure
from that level for substantial assistance.
The Government responds to this by pointing out that the plea agreement
contains an appeal waiver; therefore, appellant has waived the right to appeal on
the above grounds. We agree.
1
Because appellant filed his brief before the Supreme Court handed down its decision in
United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (which applies
Blakely’s rationale to the Guidelines), he relies on Blakely, rather than Booker. We refer to his
Blakely claim Blakely/Booker.
2
“[T]he determination of whether a defendant effectively–that is knowingly
and voluntarily–waived his right to appeal his sentence is a question of law that
[we] review de novo.” United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir.
1993). We will enforce a sentence-appeal waiver provision contained in a plea
agreement where the government demonstrates either that: “(1) the district court
specifically questioned the defendant about the waiver during the plea colloquy[;]
or (2) the record clearly shows that the defendant otherwise understood the full
significance of the waiver.” United States v. Benitez-Zapata, 131 F.3d 1444, 1446
(11th Cir. 1997). “[O]ne of the keys to enforcing a sentence appeal waiver is that
the defendant knew he had a right to appeal his sentence and that he was giving up
that right.” Bushert, 997 F.2d at 1350 (citation and internal quotations omitted).
“[T]he right to appeal a sentence based on [Blakely/Booker] grounds can be
waived in a plea agreement,” and “[b]road waiver language covers those grounds
of appeal.” United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005). In
Rubbo, we held that, absent any indication that the parties to a plea agreement
intended to alter the ordinary meaning of the term “statutory maximum,” the
exception for “a sentence above the statutory maximum” does not apply to an
argument based on the constitutional holdings of Blakely/Booker. See Rubbo, 396
F.3d at 1334-35. Most recently, in United States v. Grinard-Henry, 399 F.3d
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1294, 1296-97 (11th Cir. 2005), cert. denied, (U.S. May 16, 2005) (No. 04-9566),
we held that the exception for “a sentence in violation of the law apart from the
guidelines” does not apply to an argument that the Guidelines are unconstitutional
under Blakely/Booker because such a claim “directly involves the application of
the sentencing guidelines.”
The sentence-appeal waiver in this case is enforceable because, during the
plea colloquy, the magistrate judge specifically questioned appellant about the
waiver, and he indicated that he fully understood its significance. Additionally,
none of the grounds upon which he challenges his sentence is covered by the
enumerated exceptions to the general appeal waiver. Accordingly, this appeal is
due to be dismissed. However, the written order of judgment and commitment
erroneously indicates that appellant was adjudged guilty of conspiracy to possess
with intent to distribute five kilograms or more of cocaine. Due to this clerical
error, we remand the case to the district court for the limited purpose of correcting
it. See Fed. R. Crim. P. 36.
SO ORDERED.
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