United States v. Jack M. Makler , 249 F. App'x 816 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
OCTOBER 4, 2007
No. 06-12995
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 05-80197-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK M. MAKLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 4, 2007)
Before EDMONDSON, Chief Judge, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Defendant-Appellant Jack Makler appeals his conviction and 60-month
sentence following his guilty plea for honest services fraud, 18 U.S.C. §§ 1343
and 1346. No reversible error has been shown; we affirm.
Makler pled guilty pursuant to a written plea agreement with the
government; and he contends that the government breached that plea agreement by
not recommending that Makler receive a sentence reduction for acceptance of
responsibility. Makler’s plea agreement stated that the government would
recommend at sentencing that the district court reduce Makler’s offense level by
two levels “based upon [Makler’s] recognition and affirmative and timely
acceptance of personal responsibility.” The plea agreement also stated that, if
Makler’s offense level was 16 or more, then the government would request that
Makler’s offense level be reduced by one additional level.
Makler’s pre-sentence investigation report (“PSI”) did not recommend
applying a downward adjustment to Makler’s offense level for acceptance of
responsibility; and Makler objected to the PSI’s failure to make this
recommendation. Makler also made many other factual objections to the PSI. The
government then filed a sentencing memorandum acknowledging that Makler had
pled guilty but arguing that “by virtue of many of his factual objections as well as
his financial maneuvering to avoid solvency for restitution which will be ordered
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by the Court,” Makler did not deserve a reduction in his offense level for
acceptance of responsibility. At sentencing, the government asserted that,
although Makler did not deserve an acceptance of responsibility reduction, for
“practical purposes” the district court could award Makler a two-level reduction in
his offense level. The district court reduced Makler’s offense level by two levels;
so his advisory Guidelines range was 151 to 188 months’ imprisonment.1
Makler argues that the government breached its plea agreement by opposing
his effort to receive a three-level reduction in his offense level for acceptance of
responsibility. Because Makler did not argue before the district court that the
government had breached the plea agreement, we review this issue only for plain
error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Therefore, Makler must establish “(1) error, (2) that is plain, and (3) that affects
substantial rights.” Id. (internal quotation omitted). “If all three conditions are
met, [we] may then exercise [our] discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation omitted).
1
After applying the two-level reduction for acceptance of responsibility, Makler’s offense level
was 34; and his criminal history category was I.
3
In this case, Makler cannot establish error that affected his substantial
rights. Although Makler’s advisory Guidelines range was 151 to 188 months and
the district court explained that a sentence within that range would have been
reasonable, the statutory maximum sentence -- and the sentence imposed on
Makler -- was only 60 months’ imprisonment.2 Makler has not shown that the
government’s failure to recommend the additional one-level decrease in his
offense level would have affected his sentence because, even if his offense level
had been reduced by one additional level, his Guidelines range still would have far
exceeded the applicable statutory maximum sentence.3 Makler has not shown
plain error.
Makler next asserts that his sentence should be vacated because the
government argued at sentencing that the statutory maximum of five years’
imprisonment for Makler’s offense was later increased to 20 years’ imprisonment.
The government responds that Makler’s argument is foreclosed by the sentence
appeal waiver provision of his plea agreement. We agree.
2
Makler committed his offense through 2002, when the statutory maximum sentence for honest
services fraud was 60 months’ imprisonment. See 18 U.S.C. § 1343 (2002).
3
To the extent that Makler argues that the government’s discussion at sentencing of his lack of
acceptance of responsibility impermissibly affected his sentence, we are unpersuaded by this
argument. As discussed, the district court noted that a sentence within Makler’s Guidelines range --
which was much higher than the sentence imposed -- would have been reasonable.
4
We review the validity of a sentence appeal waiver de novo. United States
v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). A sentence appeal waiver is
enforceable if a defendant enters into it knowingly and voluntarily. United States
v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To establish that the waiver
was knowing and voluntary, the government must demonstrate that 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. Grinard-Henry,
399 F.3d 1294, 1296 (11th Cir. 2005).
The record shows that the district court reviewed the terms of Makler’s
sentence appeal waiver at his plea colloquy and asked Makler if he understood that
he was waiving his right to appeal his sentence unless his sentence exceeded the
statutory maximum or was the result of an upward departure. Makler
acknowledged that he understood his right to appeal except under the limited
circumstances discussed by the district court. We conclude that Makler’s sentence
appeal waiver was valid. See id. Because Makler’s challenge to his sentence does
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not fall within an exception to his appeal waiver, we decline to consider his
arguments.4
We affirm Makler’s conviction and sentence.
AFFIRMED.
4
After the district court imposed Makler’s sentence, the district court informed Makler that he had
the right to appeal his sentence and that his “plea agreement has a provision related to this . . . .”
Makler now asserts that, because the district court told him that he could appeal his sentence and the
government did not object to the district court’s statement, Makler should be permitted to challenge
his sentence despite his sentence appeal waiver. We reject this argument as without merit. See
United States v. Bascomb, 451 F.3d 1292, 1297 (11th Cir. 2006) (“[A]s long as an appeal waiver is
voluntarily and knowingly entered into as part of a valid plea agreement, and that agreement is
accepted by the court, the waiver is enforceable. It cannot be vitiated or altered by comments the
court makes during sentencing.”); United States v. Howle, 166 F.3d 1166, 1168-69 (11th Cir. 1999)
(explaining that district court’s statement at sentencing encouraging defendant to appeal his sentence
-- to which no party objected -- did not modify sentence appeal waiver provision of plea agreement).
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