[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 12, 2007
No. 06-13164 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80138-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW WEISS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 12, 2007)
Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.
PER CURIAM:
On July 28, 2005, a Southern District of Florida grand jury returned a multi-
count indictment against Andrew Weiss, the appellant, and Marc Wells. In Count
1, Weiss, a physician, and Wells were charged with a 21 U.S.C. § 846 conspiracy
to dispense Oxycodone outside the scope of professional medical practice and not
for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1). Counts 2
through 27 charged Weiss, and Counts 28 through 41 charged Weiss and Wells,
with substantive offenses of illegally distributing Oxycodone by writing
prescriptions for the drug that were outside the course of professional medical
practice and not for a legitimate medical purpose in violation of § 841(a)(1).
Count 52 charged Weiss with obstructing and impeding the grand jury
investigation into his unlawful distributing of Oxycodone by creating and turning
over false medical records to law enforcement officers in violation of 18 U.S.C. §
1512(c)(2).
On February 17, 2000, pursuant to a plea agreement with the Government,
Weiss pled guilty to Counts 2, 9, 22 and 39. As part of the agreement, Weiss
waived his right to appeal his sentences unless the sentences exceeded the statutory
maximum penalty or were the result of the district court’s upward departure from
the sentence range prescribed by the Sentencing Guidelines. On May 22, 2006, the
district court sentenced Weiss within the sentence range to concurrent prison terms
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of 150 months and three year terms of supervised release.1 Weiss now appeals his
sentences, contending that the sentence waiver contained in the plea agreement
does not bar him from appealing his sentences on the ground that the Government
breached the plea agreement. In addition, Weiss claims that the district court, in
determining the Guidelines sentence range, arrived at an incorrect base offense
level and applied the incorrect standard to his request for a safety-valve reduction,
under U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6) (2002).
Weiss contends that the Government breached the plea agreement in this
way: during plea negotiations, it led him to believe that he would be held
accountable for a specific number of Oxycodone pills, but informed the court’s
probation service that his offenses involved additional pills. “Plea bargains . . . are
like contracts and should be interpreted in accord with what the parties intended.”
United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005). Therefore, whether
the government has violated a plea agreement “is judged according to the
defendant’s reasonable understanding at the time he entered his plea.” United
States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996) (quotation omitted). In finding
what the defendant reasonably understood, we look to the agreement itself. If the
agreement is ambiguous, we consider extrinsic evidence of the parties’ intent.
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The sentence range (for each of the four offenses) determined by using a total offense level
of 33 and a criminal history category of I was 135 to 168 months’ imprisonment.
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United States v. Copeland, 381 F.3d 1101, 1106 (11th Cir. 2004). If the agreement
is not ambiguous, we find the defendant’s understanding from the four corners of
the document. Id.
Nothing in the plea agreement in this case indicates that the Government was
restricted from informing the court via its probation service of the number of pills
for which Weiss should be held accountable. Although an initial draft of the
agreement did state the specific number of pills involved in the offenses, that draft
was not executed. The draft that became the plea agreement removed that
statement – with Weiss’s approval, of course. That draft stated that the U.S.
Attorney reserved the right to “inform the court and the probation office of all facts
pertinent to the sentencing process, including all relevant information concerning
the offenses committed . . . .” In sum, the plea agreement is not ambiguous, and
we do not consider what the Government represented to Weiss in the initial draft.
His argument that the Government breached the agreement fails.
We enforce a sentence appeal waiver, such as the waiver in this case, where
the defendant agreed to the waiver knowingly and voluntarily. A knowing and
voluntary waiver is shown where the “(1) the district court specifically questioned
the defendant concerning the sentence appeal waiver during the Federal Rule of
Criminal Procedure 11 colloquy, or (2) it is manifestly clear from the record that
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the defendant otherwise understood the full significance of the waiver.” United
States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). “A waiver of the right to
appeal includes a waiver of the right to appeal difficult or debatable legal
issues-indeed, it includes a waiver of the right to appeal blatant error.” United
States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).
We enforce Weiss’s waiver because the district court specifically questioned
Weiss concerning the waiver, and found that he understood it, before accepting his
guilty pleas. See Bushert, 997 F.2d at 1351.
For the foregoing reasons, Weiss’s sentences are
AFFIRMED.
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