United States v. Jose Leonel Garcia Rios , 153 F. App'x 665 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 2, 2005
No. 04-15174
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20036-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LEONEL GARCIA RIOS,
a.k.a. Meliton Pacheco,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 2, 2005)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
Jose Leonel Garcia Rios appeals the district court’s acceptance of his guilty
plea to conspiracy to possess with intent to distribute five kilograms or more of
cocaine while aboard of a vessel subject to the jurisdiction of the United States, 46
U.S.C. § 1903(a), (j), (g), and 21 U.S.C. § 960(b)(1)(B). The district court did not
err in accepting the plea, and we affirm.
Rios claims the district court erred by accepting his guilty plea because the
court did not adequately question him about the appeal waiver during the plea
colloquy. He contends the record does not clearly show he understood the full
significance of the appeal waiver provision. Thus, his plea was not knowing and
voluntary, and it should be unenforceable. Rios also asserts even if he was
adequately informed about the appeal waiver, the plea is nevertheless
unenforceable because the district court confused him when it stated at sentencing
that Rios had a right to appeal his sentence.
We review de novo whether there is an effective waiver of the right to
appeal a sentence. United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th
Cir. 1997). A defendant=s waiver of his right to appeal must be knowing and
voluntary, and to enforce the waiver A[t]he government must show that either
(1) the district court specifically questioned the defendant concerning the sentence
appeal waiver . . ., or (2) it is manifestly clear from the record that the defendant
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otherwise understood the full significance of the waiver.@ United States v.
Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).
Rios knowingly and voluntarily waived the right to appeal his sentence. As
required by Bushert, the district court clearly and adequately questioned Rios
about the waiver by asking whether he understood that, as part of his plea
agreement, he was giving up his right to appeal his sentence, except in limited
circumstances, i.e., if the sentence exceeded the maximum permitted by statute, or
the court imposed an upward departure from the guideline range. The court also
asked Rios whether he understood the appeal waiver provision and the other
provisions of the plea agreement the court had discussed with him. Rios stated he
understood the waiver provision as well as the court’s explanation of it. In
addition to the court’s explanation, Rios acknowledged he had read and reviewed
the entire plea agreement, which had been translated into Spanish, understood
“each and every term” in the agreement, and had discussed it with his attorney.
Thus, the record satisfies the standard enunciated in Bushert for enforcement of
the waiver.
Moreover, contrary to Rios’ contention, the fact the district court referred to
the waiver as a “partial waiver” does not undermine the knowing and voluntary
nature of the waiver. The court accurately explained that Rios was only waiving
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an appeal as to his sentence and that, even as to that waiver, he would not be
bound by it in the event of certain contingencies. Similarly, Rios’ contention his
guilty plea was rendered involuntary or unknowing because the district court
advised him of his right to appeal at the conclusion of the sentencing hearing is
without merit. See United States v. Howle, 166 F.3d 1166, 1168 (11th Cir. 1999),
citing Benitez-Zapata, 131 F.3d at 1446–47 (district judge’s remarks at sentencing
that defendant had right to appeal within ten days did not invalidate previously
entered plea agreement in which defendant waived right to appeal sentence).
Even if the sentence appeal waiver was invalid, the remedy for an
unknowing and involuntary sentence appeal waiver is severance. See Bushert, 997
F.2d at 1353. However, because Rios has not identified any claim of sentencing
error in his brief, he has abandoned any sentencing issues. See Rowe v. Schreiber,
139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (noting an argument is deemed to be
abandoned if an appellant fails to raise it in his appellate brief).
AFFIRMED.
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