United States v. Rafael Alvarez-Hernandez , 237 F. App'x 597 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 27, 2007
No. 06-15237 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00438-CR-JTC-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL ALVAREZ-HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 27, 2007)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Rafael Alvarez-Hernandez appeals his 329-month sentence, which was
imposed after he pled guilty to conspiracy to possess with intent to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(viii). On appeal, Alvarez-Hernandez argues that the district court
erred at sentencing by basing its findings on evidence not having sufficient indicia
of reliability. The government responds that the sentence-appeal waiver in
Alvarez-Hernandez’s written plea agreement precludes consideration of this issue.
Alvarez-Hernandez also argues that the government breached the plea agreement at
sentencing by using against him information provided by Alvarez-Hernandez
himself, pursuant to his cooperation with the government. We dismiss in part and
affirm in part.
We review a sentence-appeal waiver de novo. United States v. Bushert, 997
F.2d 1343, 1352 (11th Cir. 1993). A sentence-appeal waiver contained in a plea
agreement, made knowingly and voluntarily, is enforceable. Id. at 1350. To
enforce the sentence appeal waiver, the government must demonstrate either that
(1) the district court specifically questioned the defendant about the waiver during
the change of plea colloquy, or (2) the record clearly shows that the defendant
otherwise understood the full significance of the waiver. Id. at 1351. “A waiver of
the right to appeal includes a waiver of the right to appeal difficult or debatable
legal issues – indeed, it includes a waiver of the right to appeal blatant error.”
United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999). Moreover, “a
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vigorous dispute about an issue during the sentencing proceedings does not
preserve that issue for appeal when the terms of the appeal waiver do not except it
from the waiver.” United States v. Bascomb, 451 F.3d 1292, 1296 (11th Cir.
2006).
Alvarez-Hernandez signed a plea agreement which provided the following
concerning his ability to appeal his sentence:
LIMITED WAIVER OF APPEAL: To the maximum extent permitted
by federal law, the defendant voluntarily and expressly waives the
right to appeal his sentence and the right to collaterally attack his
sentence in any post-conviction proceeding on any ground, expect that
the defendant may file a direct appeal of an upward departure from the
otherwise applicable guideline range. The defendant understands that
this Plea Agreement does not limit the Government’s right to appeal,
but if the Government appeals the sentence imposed, the defendant
may also file a direct appeal of his sentence.
As part of the plea colloquy, the district court discussed with Alvarez-Hernandez
his competency and understanding of the plea agreement, including the effect of
the sentence-appeal waiver on his appellate rights. Alvarez-Hernandez indicated
that he understood the waiver, and the district court found him to be competent to
enter the plea and found that he understood the proceedings. On this record, we
are satisfied that Alvarez-Hernandez’s plea agreement, and more specifically, the
sentence-appeal waiver, was knowingly and voluntarily executed. Accordingly,
we dismiss this appeal as to Alvarez-Hernandez’s arguments concerning the
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district court’s factual findings at sentencing since those arguments plainly come
within the scope of the appeal waiver.
As for Alvarez-Hernandez’s claim that the government breached the plea
agreement, we review this issue de novo. See United States v. Mahique, 150 F.3d
1330, 1332 (11th Cir.1998). We determine whether the government violated the
plea agreement according to the defendant’s reasonable understanding at the time
he entered the plea. United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). If
the government disputes the defendant’s understanding, however, this Court
determines the terms of the agreement according to objective standards. Id.
Here, while the plea agreement provided that the government would not use
Alvarez-Hernandez’s self-incriminating statements, made pursuant to the plea
agreement, for the purpose of determining the sentencing guideline range, a review
of the sentencing proceedings makes clear that neither the government nor the
district court considered, or otherwise used the protected statements, in
determining the offense level or Guidelines range. Accordingly, we affirm
Alvarez’s conviction and sentence.
DISMISSED IN PART; AFFIRMED IN PART.
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