[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 24, 2006
No. 06-12068 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00086-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDIE LEE JOHNSON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 24, 2006)
Before ANDERSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Freddie Lee Johnson, Jr., appearing pro se, appeals his sentences following
his guilty plea, which was made pursuant to a written plea agreement, to two
counts of possession with the intent to distribute and distribution of five grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). The
plea agreement contained a sentence appeal waiver stating that Johnson waived his
right to appeal his sentence or challenge it collaterally on any ground, including the
ground that the district court erred in determining the guideline range, except:
(1) that the sentence exceeded his applicable guideline range as determined by the
court; (2) that the sentence exceeded the statutory maximum; and (3) that the
sentence violated the Constitution. At Johnson’s change-of-plea hearing, he
admitted that he sold crack cocaine, and, when the magistrate judge questioned him
regarding the waiver, he indicated that he understood the terms of the waiver.
On appeal, Johnson argues that the district court violated his Fifth
Amendment and Sixth Amendment rights because the government did not prove
beyond a reasonable doubt that the substance he distributed was crack cocaine, as
opposed to some other form of cocaine.
We review constitutional errors in sentencing de novo, but will reverse only
for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
However, if the defendant fails to object before the district court, we review for
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plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert.
denied, 125 S.Ct. 2935 (2005). Under this standard of review, there must be (1) an
error, (2) that is plain, and (3) that affects substantial rights. Id. If these three
conditions are met, we may notice the error only if “the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (citation and
quotation marks omitted).
In Booker, the Supreme Court held that the federal sentencing guidelines
violate the Sixth Amendment right to a trial by jury to the extent that they permit a
judge to increase a defendant’s sentence based on facts that are neither found by
the jury nor admitted by the defendant. Booker, 543 U.S. at 244, 125 S.Ct. at 756.
The Court held that the federal sentencing guidelines are advisory, and district
courts should take the guidelines into account when considering the sentencing
factors set forth in 18 U.S.C. § 3553(a). Id. at 245-46, 125 S.Ct. at 756-57.
However, if the district court applies the guidelines as advisory, nothing in Booker
prohibits district courts from making, under a preponderance-of-the-evidence
standard, additional factual findings that go beyond a defendant’s admission.
United States v. Chau, 426 F.3d 1318, 1324 (11th Cir. 2005). In United States v.
Burge, 407 F.3d 1183, 1191 (11th Cir.), cert. denied, 126 S.Ct. 551 (2005), we
held that “Burge waived his objections to the factual statements about his relevant
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conduct in the [presentence investigation report (“PSI”)] and therefore, admitted
the facts in the report.”
The sentencing guidelines define “cocaine base” as “crack” cocaine.
U.S.S.G. § 2D1.1 n(D). “‘Crack’” is the street name for a form of cocaine base,
usually prepared by processing cocaine hydrochloride and sodium bicarbonate.”
Id.
We review Johnson’s claim for plain error because he raises it for the first
time on appeal. The district court correctly calculated Johnson’s offense level
based on his possession and distribution of cocaine base, which is defined as crack,
because (1) Johnson admitted at his plea hearing that he sold crack; (2) he failed to
object to the PSI’s factual statement that he distributed cocaine base; (3) he
indicated that he agreed with the factual basis for the plea, which stated that he sold
crack to a confidential source; and (4) the indictment charged him with distributing
“cocaine base, crack cocaine,” as opposed to some other form of cocaine. Further,
his reliance on Booker is misplaced because the court did not increase his sentence
based on facts that were not admitted by him. Accordingly, the district court did
not violate Johnson’s Fifth and Sixth Amendment rights.
Johnson also argues that the district court should have applied the rule of
lenity and calculated his guideline range using cocaine rather than crack cocaine.
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However, for the reasons set forth more fully below, Johnson has waived his right
to appeal this issue.
We review the validity of an appeal waiver provision of a plea agreement de
novo. United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001). An
appeal waiver is valid if it was entered into knowingly and voluntarily. United
States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). For an appeal wavier to
be enforced, the government must show that either: (1) the district court
specifically questioned the defendant concerning the sentence appeal waiver during
the plea hearing, or (2) it is manifestly clear from the record that the defendant
otherwise understood the full significance of the waiver. Id. at 1351.
“The ‘rule of lenity’ requires that actual ambiguities in criminal statutes,
including sentencing provisions, be resolved in favor of criminal defendants.”
United States v. Lazo-Ortiz, 136 F.3d 1282, 1286 (11th Cir. 1998). We apply the
rule of lenity “only if the provision being construed is still ambiguous after
application of the normal rules of [statutory] construction. United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.), cert. denied, 126 S.Ct. 457
(2005).
Johnson’s claim that the district court erred by not applying the rule of lenity
is covered by the appeal-waiver provision in his plea agreement because whether
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21 U.S.C. § 841(b) and the sentencing guidelines are ambiguous is a matter of
statutory interpretation, rather than a constitutional issue. The appeal waiver was
knowing and voluntary because the district court questioned Johnson about the
appeal waiver during the Rule 11 colloquy, and Johnson indicated that he
understood the waiver. Accordingly, we dismiss Johnson’s rule of lenity claim.
AFFIRMED IN PART, DISMISSED IN PART.
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