[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10673 ELEVENTH CIRCUIT
November 17, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00107-CR-ORL-28-UAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMARIS CRUZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 17, 2008)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Damaris Cruz appeals her 121-month sentence, imposed following her
conviction on one count of possession with intent to distribute five or more
kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). On appeal,
Cruz first argues that her sentence violates the Eighth Amendment because it was
not proportional to the crime she committed. Second, Cruz argues that the district
court clearly erred in failing to award her a reduction for playing a mitigating role
in the offense under U.S.S.G. § 3B1.2 and for her acceptance of responsibility
under U.S.S.G. § 3E1.1. Finally, Cruz argues that the government breached the
plea agreement because, in the agreement, it promised to make certain
recommendations at sentencing, but failed to make them. As to the two guidelines
issues, the government responds that Cruz’s sentence-appeal waiver in her plea
agreement bars appellate review.
I. Eighth Amendment
We review for plain error an argument raised for the first time on appeal
that a sentence violates the Eighth Amendment. See United States v. Johnson, 451
F.3d 1239, 1242 (11th Cir. 2006). Under plain error review, we can only make
corrections if there is an error, that is plain, and that affects substantial rights.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If these criteria
are met, we have the discretion to correct the error, but “should” correct the error
only if it “seriously affects the fairness, integrity or public reputation of judicial
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proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779,
123 L.Ed.2d 508 (1993) (quotation and alteration omitted).
The Eighth Amendment provides that “cruel and unusual punishments [shall
not be] inflicted.” U.S. Const. amend. VIII. To determine whether a sentence
violates the Eighth Amendment, we
must make a threshold determination that the sentence imposed is
grossly disproportionate to the offense committed and, if it is grossly
disproportionate, [we] must then consider the sentences imposed on
others convicted in the same jurisdiction and the sentences imposed
for commission of the same crime in other jurisdictions.
United States v. Raad, 406 F.3d 1322, 1324 (11th Cir. 2005) (quotation omitted).
The defendant bears the burden of making the threshold showing of
disproportionality. See id. at 1324 n.4. “In non-capital cases, the Eighth
Amendment encompasses, at most, only a narrow proportionality principle.”
United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) (quotation
omitted). “The Supreme Court has made it clear that, outside the context of capital
punishment, successful challenges to the proportionality of sentences are
exceedingly rare.” Raad, 406 F.3d at 1323 (quotation and alterations omitted). “In
general, a sentence within the limits imposed by statute is neither excessive nor
cruel and unusual under the Eighth Amendment.” Johnson, 451 F.3d at 1243
(quotation omitted).
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In this case, the district court did not commit plain error in sentencing Cruz
because her sentence did not violate the Eighth Amendment, as she cannot show
that the sentence was disproportionate to her offense under the Supreme Court’s
and our precedent. Accordingly, we affirm as to this issue.
II. Guideline Issues
“[T]he determination of whether a defendant effectively – that is knowingly
and voluntarily – waived [her] right to appeal [her] sentence is a question of law
that this court reviews de novo.” United States v. Bushert, 997 F.2d 1343, 1352
(11th Cir. 1993). “An appeal-of-sentence waiver provision is enforceable if the
waiver is made knowingly and voluntarily.” United States v. Weaver, 275 F.3d
1320, 1333 (11th Cir. 2001). “To establish the waiver’s validity, the government
must show either that (1) the district court specifically questioned the defendant
about the provision during the plea colloquy, or (2) it is manifestly clear from the
record that the defendant fully understood the significance of the waiver.” Id. “An
appeal waiver includes the waiver of the right to appeal difficult or debatable legal
issues or even blatant error.” United States v. Grinard-Henry, 399 F.3d 1294, 1296
(11th Cir. 2005).
Cruz is precluded from challenging the court’s guideline calculation because
she knowingly and voluntarily entered into a sentence-appeal waiver in her plea
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agreement. The waiver applies to these two guidelines issues, and accordingly we
dismiss the appeal as to these issues.
III. Alleged Breach of the Plea Agreement
We review an argument that the government breached a plea agreement,
raised for the first time on appeal, for plain error. See United States v. Romano,
314 F.3d 1279, 1281 (11th Cir. 2002). “A material promise by the government,
which induces a defendant to plead guilty, binds the government to that promise.
Whether the government violated the agreement is judged according to the
defendant’s reasonable understanding of the agreement when [s]he entered the
plea.” United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007) (citation
omitted).
Cruz cannot show that the court committed plain error in sentencing her
because the promised recommendations in the agreement were conditional, and
Cruz failed to satisfy those conditions. Accordingly, the government did not
breach the agreement and we affirm as to this issue.
IV. Conclusion
Based on a review of the record and the parties’ briefs, we affirm as to
Cruz’s arguments concerning the Eighth Amendment and a breach of the plea
agreement, and we dismiss the appeal as to her claims concerning her sentencing
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guideline calculation.
AFFIRMED in part, DISMISSED in part.
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