United States v. Mauricio Grinard-Henry

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 11, 2005
No. 04-12677
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-00437-CR-T-17-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURICIO GRINARD-HENRY,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

Before CARNES, HULL and MARCUS, Circuit Judges.

BY THE COURT:

Appellant Mauricio Grinard-Henry appeals his 135-month sentence imposed

after he pled guilty to federal drug charges. Specifically, in his initial brief on
appeal, Grinard-Henry challenged on Blakely/Apprendi grounds the district court’s

sentencing him based on a drug quantity greater than the amount to which he pled

guilty based on its own factual findings. The government moved to dismiss

Grinard-Henry’s appeal based on the appeal waiver in his plea agreement, and this

Court granted the government’s motion and dismissed the appeal on December 23,

2004. Grinard-Henry now seeks reconsideration of the dismissal in light of the

Supreme Court’s decision in United States v. Booker, 543 U.S. __, 125 S. Ct. 738

(2005). Grinard-Henry’s motion for reconsideration is DENIED.

A. Plea Agreement

Grinard-Henry’s plea agreement acknowledged that Grinard-Henry would

be sentenced in conformance with the federal sentencing guidelines; that Grinard-

Henry agreed that the court had jurisdiction and authority to impose any sentence

up to the statutory maximum set forth for the offense and pursuant to the

sentencing guidelines; and that Grinard-Henry waived the right to appeal his

sentence with certain limited exceptions. Specifically, the plea agreement stated,

in relevant part, as follows:

The defendant understands and acknowledges that defendant’s
sentence will be determined and imposed in conformance with the
Comprehensive Crime Control Act of 1984 and the federal sentencing
guidelines. Defendant is also aware that a sentence imposed under the
sentencing guidelines does not provide for parole. Knowing these
facts, the defendant agrees that this Court has jurisdiction and

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 authority to impose any sentence up to the statutory maximum set
forth for the offense and pursuant to the sentencing guidelines and
expressly waives the right to appeal defendant’s sentence, directly or
collaterally, on any ground, . . . except for an upward departure by the
sentencing judge, a sentence above the statutory maximum, or a
sentence in violation of the law apart from the sentencing guidelines;
provided, however, that if the government exercises its right to appeal
the sentence imposed, as authorized by 18 U.S.C. § 3742(b), the
defendant is released from this waiver and may appeal the sentence as
authorized by 18 U.S.C. § 3742(a).

(Emphasis added.) Thus, the plea agreement contained only four exceptions to the

appeal waiver: (1) an upward departure, (2) a sentence above the statutory

maximum, (3) a sentence in violation of the law apart from the sentencing

guidelines, and (4) an appeal by the government.

During the change-of-plea colloquy with Grinard-Henry, the magistrate

judge explained to Grinard-Henry the significance of the appeal-waiver provision,

specifically questioned him about the waiver, and confirmed Grinard-Henry’s

understanding.

B. Discussion

“Waiver 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 understood

the full significance of the waiver.” United States v. Benitez-Zapata, 131 F.3d

1444, 1446 (11th Cir. 1997); see also United States v. Buchanan, 131 F.3d 1005,

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1008-09 (11th Cir. 1997); United States v. Bushert, 997 F.2d 1343, 1350-51 (11th

Cir. 1993). An appeal waiver includes the waiver of the right to appeal difficult or

debatable legal issues or even blatant error. See United States v. Howle, 166 F.3d

1166, 1169 (11th Cir. 1999). Specifically, “the right to appeal a sentence based on

Apprendi/Booker grounds can be waived in a plea agreement. Broad waiver

language covers those grounds of appeal.” United States v. Rubbo, — F.3d —,

2005 WL 120507 at *5 (11th Cir. Jan. 21, 2005).

Here, the record is clear that the magistrate judge specifically questioned

Grinard-Henry during the plea colloquy about the appeal waiver, adequately

explained the significance of the appeal waiver, and confirmed that Grinard-Henry

understood the full significance of the appeal waiver. In addition, the general

appeal-waiver language of the plea agreement is broad enough to include an

Apprendi/Blakely/Booker claim. See id. Thus, the only question is whether the

Apprendi/Blakely/Booker issue raised by Grinard-Henry in this appeal falls within

any of the plea agreement’s exceptions.

To determine whether Grinard-Henry waived the right to appeal on the basis

of the Apprendi/Blakely/Booker issue, we interpret the plea agreement in

accordance with the intentions of the parties. See Rubbo, 2005 WL 120507 at 4.

Viewing the plea agreement as a whole, we conclude that Grinard-Henry waived

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any Apprendi/Blakely/Booker claim for several reasons.

One of the exceptions allowed Grinard-Henry to appeal a sentence “above

the statutory maximum.” This Court recently held that the term “statutory

maximum,” in a plea agreement permitting appeal in the limited circumstance of a

sentence exceeding the statutory maximum, refers to “the longest sentence that the

statute which punishes a crime permits a court to impose, regardless of whether the

actual sentence must be shortened in a particular case because of the principles

involved in the Apprendi/Booker line of decisions.” Rubbo, 2005 WL 120507 at

*5. Because Grinard-Henry’s sentence does not exceed the relevant statutory

maximum, he is not entitled to appeal his sentence under this exception.

The only other potentially applicable exception is the one allowing Grinard-

Henry to appeal “a sentence in violation of the law apart from the sentencing

guidelines.” Grinard-Henry’s appeal asserts that the district court sentenced him

based on a drug quantity greater than the quantity to which he pled guilty, based on

facts not found by a jury, and thus his sentence violates the Fifth and Sixth

Amendments.1 The appeal in effect asserts that the sentencing guidelines were

unconstitutionally applied to his case, and thus Grinard-Henry’s challenge directly

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Grinard-Henry’s brief on appeal also asserts that the district court erred in denying him a
minor-role adjustment pursuant to U.S.S.G § 3B1.2 and in denying him a downward departure
because he was a foreign national who would be incarcerated far from his home and family.
These issues clearly were waived by the appeal waiver and merit no further discussion.

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involves the application of the sentencing guidelines. It does not allege a

“violation of the law apart from the guidelines.”

This conclusion is also reinforced by two other provisions of the plea

agreement. First, the plea agreement stated that Grinard-Henry understood and

acknowledged that his sentence would be imposed in conformity with the

sentencing guidelines. Second, Grinard-Henry agreed that the court had

jurisdiction and authority to impose any sentence up to the statutory maximum set

forth for the offense and pursuant to the sentencing guidelines. These two

provisions further demonstrate that Grinard-Henry conceded the applicability of

the sentencing guidelines to his case and did not seek to preserve the right to claim

that the sentencing guidelines were unconstitutional and could not be applied to his

case. Accordingly, we conclude that Grinard-Henry’s Apprendi/Blakely/Booker

claim on appeal does not fall within any of the exceptions to his appeal waiver.

Because Grinard-Henry knowingly and voluntarily waived his right to

appeal his sentence on the grounds he asserts on appeal, this appeal was properly

dismissed, and Grinard-Henry’s motion for reconsideration is DENIED.

DENIED.

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