[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 5, 2009
No. 08-14962 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20825-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAUREANO CHIRINO RIVERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 5, 2009)
Before BLACK, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Laureano Chirino Rivera appeals his convictions and sentences for
conspiracy to commit robbery, 18 U.S.C. § 1951(a), and conspiracy to carry a
firearm in furtherance of a crime of violence, 18 U.S.C. § 924(o). Rivera entered a
guilty plea to both of his counts of conviction. Two months later, at sentencing, he
attempted to withdraw his guilty plea, explaining he was actually innocent of the
charged offenses and he was generally dissatisfied with his attorney’s
representation. Neither Rivera nor his attorney requested the district court appoint
new counsel to represent him.
Rivera asserts the district court erred by: (1) failing to sua sponte appoint
new counsel to assist him in arguing his motion to withdraw his guilty plea; and
(2) imposing a four-level aggravating-role enhancement under U.S.S.G.
§ 3B1.1(a). The Government asserts we should not consider Rivera’s argument the
district court erred by imposing an aggravating-role enhancement because,
pursuant to the appeal-waiver provision in his plea agreement, Rivera waived his
right to raise this as an issue on appeal.
I.
While Rivera generally stated his attorney did not represent him well, he
failed to request the court appoint a new attorney to represent him, and failed to
object to the district court’s failure to appoint a new attorney to assist him with his
motion to withdraw his guilty plea. Accordingly, this Court should review his
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argument on appeal for plain error. United States v. Spoerke, 568 F.3d 1236, 1244
(11th Cir. 2009). “Plain error occurs where (1) there is an error; (2) that is plain or
obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial
and not harmless; and (4) that seriously affects the fairness, integrity or public
reputation of the judicial proceedings.” Id. at 1244-45 (quotation omitted).
Addressing the first prong of the plain error analysis, the district court
committed no error in failing to sua sponte appoint new counsel to represent
Rivera after he informed the court he wished to withdraw his guilty plea and was
dissatisfied with his attorney’s representation. Even if Rivera had requested new
counsel, he would not have been entitled to new counsel unless he showed a
conflict of interest, a complete breakdown of communications between himself and
his attorney, or an otherwise irreconcilable conflict. United States v. Garey, 540
F.3d 1253, 1262 (11th Cir. 2008) (en banc) (explaining good cause to appoint a
new attorney refers to a “fundamental” problem, such as a conflict of interest, a
complete breakdown in communication between the client and the attorney, “or an
irreconcilable conflict which leads to an apparently unjust verdict”). The only
conflict of interest Rivera asserts on appeal is that he expressed his dissatisfaction
with his attorney’s performance during sentencing. A district court does not err in
denying a motion to withdraw based on a defendant’s general dissatisfaction with
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his attorney’s performance unless there has been a complete breakdown in
communication between the defendant and his attorney. United States v. Calderon,
127 F.3d 1314, 1343 (11th Cir. 1997) (affirming the denial of a motion to
withdraw where, although a defendant and his attorney disagreed regarding
defense strategy, there was no total breakdown of communication between them).
Here, the record demonstrates there was not a complete breakdown in
communication between Rivera and his attorney because, at sentencing, Rivera’s
attorney stated Rivera wished to read a letter to the court, and he also stated he had
discussed with Rivera the possibility of executing an acceptance- of-responsibility
statement. This demonstrated Rivera and his attorney communicated about the
sentencing hearing. Thus, the district court did not err, much less plainly err, in
failing to sua sponte appoint new counsel. Accordingly, we affirm as to this issue.
II.
We review de novo whether an appeal waiver was not effective because it
was not knowing or voluntary. United States v. Benitez-Zapata, 131 F.3d 1444,
1446 (11th Cir. 1997). A sentence-appeal waiver must be entered into knowingly
and voluntarily and “will be enforced if the government demonstrates either:
(1) the district court specifically questioned the defendant about the waiver during
the plea colloquy, or (2) the record clearly shows that the defendant otherwise
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understood the full significance of the waiver.” Id. A sentence-appeal waiver
includes the waiver of the right to appeal difficult or debatable legal issues or even
blatant error. United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).
The record demonstrates Rivera knowingly and voluntarily agreed to the
appeal-waiver provision in his plea agreement. During Rivera’s plea colloquy, the
Government explained that, by assenting to the plea agreement, Rivera waived his
statutory right to appeal his sentence, with limited exceptions. When the court
asked Rivera if he understood he was waiving certain appeal rights by agreeing to
the plea agreement, Rivera stated he understood. Because the court specifically
questioned Rivera about the appeal-waiver provision, the waiver was valid and
effective. See Benitez-Zapata, 131 F.3d at 1446. Because the appeal waiver did
not contain an exception permitting Rivera to appeal the court’s imposition of an
aggravating-role enhancement, he is precluded from raising this argument on
appeal. See Howle, 166 F.3d at 1169. Thus, we dismiss the appeal as to this issue.
AFFIRMED IN PART, DISMISSED IN PART.
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