Case: 16-10995 Date Filed: 01/18/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10995
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20675-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CUTHBERT LEW NICHOLAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 18, 2017)
Before TJOFLAT, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Culbert Nicholas appeals his 120-month sentence, imposed after pleading
guilty to one count of possession with the intent to distribute controlled substances,
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in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)–(D), one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count
of possession of a firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A)(i). On appeal, Nicholas argues that the district court
erred by designating him as a career offender under the Guidelines. He does not
argue that his sentence appeal waiver should not be enforced. Upon review of the
record and consideration of the parties’ briefs, we affirm.
We review the validity of a sentence appeal waiver de novo. United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver will
be enforced if made knowingly and voluntarily. United States v. Bushert, 997 F.2d
1343, 1351 (11th Cir. 1993). To establish that the waiver was made knowingly
and voluntarily, the government must show either that: (1) the district court
specifically questioned the defendant about the waiver during the plea colloquy; or
(2) the record makes clear that the defendant otherwise understood the full
significance of the waiver. Id.
The record shows that Nicholas’s sentence appeal waiver was made
knowingly and voluntarily. During the plea colloquy, the court specifically
questioned Nicholas about the appeal waiver, and Nicholas indicated that he
waived his right to appeal knowingly and voluntarily. See Bushert, 997 F.2d at
1351. He also indicated that he was not forced or coerced into agreeing to the
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terms of the plea deal. Therefore, his appeal waiver is valid. See id. Moreover,
the only exceptions to the waiver are not applicable, because there was no upward
departure or variance by the district court and the sentence was not above any of
the statutory maximums. In fact, Nicholas’s sentence of 120 months was below
the guideline range of 262 to 327 months and equal to the lowest statutory
maximum of 120 months. Therefore, his appeal is barred by his sentence appeal
waiver.
Therefore, his appeal is barred by his sentence appeal waiver. Accordingly,
we affirm.
AFFIRMED.
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