[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 22, 2006
No. 06-11887
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00084-CR-FTM-33-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDVARD BAPTISTE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 22, 2006)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Edvard Baptiste appeals his sentence imposed in accordance with a written
plea agreement, in which the government agreed not to oppose a request for a
sentence at the low end of the advisory Guidelines range. Baptiste argues that the
government breached the plea agreement when it did not urge a low-end sentence.
Baptiste also makes arguments about his sentence that are barred by his valid
appeal waiver. We affirm in part and dismiss in part.
I. BACKGROUND
On November 28, 2005, Baptiste pleaded guilty to possession with intent to
distribute five grams or more of cocaine base. 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(iii). In a written plea agreement, the government agreed to
recommend the maximum reduction for acceptance of responsibility and not to
oppose Baptiste’s request for a sentence at the low end of the applicable
Guidelines range. The advisory Guidelines range was 37 to 46 months.
In January 2006, while Baptiste was released on bond pending sentencing,
Baptiste allegedly battered his pregnant ex-girlfriend. At sentencing, when the
government stated that it would not object to a request by Baptiste that he be
sentenced towards the low end of the Guidelines range, the district court asked,
“How about beating up a pregnant girlfriend during the time that he’s out?” The
government replied that no charges had been filed relating to those allegations and
the low-end recommendation was based on Baptiste’s cooperation and lack of
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prior drug convictions. The court imposed a sentence of 46 months.
II. STANDARDS OF REVIEW
Because Baptiste did not raise his argument about the plea agreement in the
district court, we review only for plain error. United States v. Walker, 59 F.3d
1196, 1198 (11th Cir. 1995). We review de novo the validity of Baptiste’s appeal
waiver. United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).
III. DISCUSSION
Baptiste argues that he is entitled to resentencing because the government
breached the plea agreement. Baptiste also makes arguments about the legality
and reasonableness of his sentence, which the government argues are foreclosed
because Baptiste agreed to a valid appeal waiver. We address these issues in turn.
A. The Government Did Not Breach the Plea Agreement.
Baptiste makes two arguments about the plea agreement. First, he argues
that the recommendation of the government at sentencing that Baptiste receive a
sentence “towards” the low end of the Guidelines range breached the agreement to
recommend a sentence “at” the low end of the range. Second, Baptiste argues that
the government breached the agreement when it “attempt[ed] to distance itself
from the recommendation” after the district court asked about the battery
allegation.
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Both of Baptiste’s arguments fail. First, the plea agreement required only
that the government not oppose a low-end recommendation by the defense. When
the government made the “towards” statement, Baptiste had not yet requested a
low-end sentence, and at no point did the government oppose Baptiste’s eventual
request for a sentence at the low end of the Guidelines range. Second, the written
plea agreement stated that the low-end recommendation was conditional: “In the
event that no adverse information is received suggesting such a recommendation
to be unwarranted, the United States will not oppose the defendant’s request to the
Court that the defendant receive a sentence at the low end of the applicable
guideline range, as calculated by the Court.” Although we agree with the
government that the new information regarding the battery allegations suggested
that the recommendation was unwarranted, the government, in its response to the
question about the battery allegations, defended the recommendation. The
government did not breach its agreement with Baptiste.
B. Baptiste’s Remaining Arguments are Barred by a Valid Appeal Waiver.
Baptiste argues that his sentence was illegal and unreasonable, but we will
not consider these arguments because they are barred by an enforceable appeal
waiver. None of the exceptions to the waiver contained in the written plea
agreement apply. The district court concluded after specific questioning during
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the plea colloquy that the appeal waiver was knowing and voluntary. See United
States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). We agree that
Baptiste has waived his right to appeal his sentence on the grounds raised here.
IV. CONCLUSION
Baptiste’s appeal is DISMISSED in part, and his sentence is AFFIRMED.
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