[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 9, 2005
No. 04-10702 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00258-CR-2-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS TRASVINA ALVAREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 9, 2005)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
This appeal of Juan Carlos Trasvina Alvarez regarding the propriety of his
conviction and sentence for conspiracy to possess with intent to distribute cocaine
is on remand from the Supreme Court of the United States for further
consideration in the light of United States v. Booker, 543 U.S. —, 125 S. Ct. 738
(2005). See Alvarez v. United States, — U.S. —, 125 S. Ct. 1717 (2005). We
previously affirmed Alvarez’s sentence. United States v. Alvarez, No. 04-10702
(11th Cir. Nov. 17, 2005). After reconsideration, we again affirm Alvarez’s
conviction and sentence, and we reinstate our previous opinion.
The decision of the Supreme Court in Booker does not change our
resolution of this appeal. As we explained before, in his plea agreement, Alvarez
agreed to waive his right to appeal his sentence. An appeal waiver that is part of a
knowing and voluntary plea agreement is enforceable, United States v. Bushert,
997 F.2d 1343, 1350-51 (11th Cir. 1993), and we have held that “the right to
appeal a sentence based on Apprendi/Booker grounds can be waived in a plea
agreement.” United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005).
During Alvarez’s plea colloquy, the district court specifically questioned Alvarez
regarding the appeal waiver, and Alvarez confirmed that he understood and agreed
voluntarily to it. Alternatively, again as we explained in our previous opinion,
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Alvarez also did not raise a Booker or Blakely challenge to his sentence in his
opening brief. Because Alvarez first raised that issue in his reply brief, the
argument was waived. United States v. Duncan, 400 F.3d 1297, 1299 n.1 (11th
Cir. 2005); see also United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004)
(per curiam).
After reconsideration, we again affirm and reinstate our previous opinion.
OPINION REINSTATED; AFFIRMED.
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