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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12435
Non-Argument Calendar
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D.C. Docket No. 9:18-cr-80242-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE SALGADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 2, 2020)
Before JILL PRYOR, HULL and MARCUS, Circuit Judges.
PER CURIAM:
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Enrique Salgado appeals his 33-month sentence, which the district court
imposed after he pled guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Salgado argues that his sentence is
substantively unreasonable. In response, the government contends that Salgado’s
appeal is barred by the sentence-appeal waiver in his plea agreement. After careful
review, we agree and dismiss this appeal.
Salgado pled guilty pursuant to a plea agreement. As part of that agreement,
he executed a sentence appeal waiver, in which he agreed to waive his right to
appeal any sentence imposed, or the manner in which the sentence was imposed,
unless the sentence imposed was (1) in excess of the statutory maximum, or (2) the
result of an upward departure or variance from the advisory guideline range
calculated by the district court at sentencing. The waiver also provided that, if the
government appealed, Salgado would be released from the waiver. At the change-
of-plea hearing, the district court expressly addressed the appeal waiver and its
limited exceptions. Salgado confirmed that he understood both the waiver and the
exceptions. After the district court accepted Salgado’s guilty plea, it sentenced
him to 33 months’ imprisonment, the bottom of the applicable guidelines range,
and 3 years’ supervised release.
“We review the validity of a sentence appeal waiver de novo.” United
States v. Johnson,
541 F.3d 1064, 1066 (11th Cir. 2008). We will enforce a
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sentence appeal waiver if it was made knowingly and voluntarily. United States v.
Bushert,
997 F.2d 1343, 1350 (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. at 1351. The district court
must clearly convey to the defendant the circumstances under which he is giving
up the right to appeal. See
id. at 1352-53. “An appeal waiver includes the waiver
of the right to appeal difficult or debatable legal issues or even blatant error.”
United States v. Grinard-Henry,
399 F.3d 1294, 1296 (11th Cir. 2005). However,
we have noted that “[i]n extreme circumstances—for instance, if the district court
had sentenced [the defendant] to a public flogging—due process may require that
an appeal be heard despite a previous waiver.” United States v. Howle,
166 F.3d
1166, 1169 n.5 (11th Cir. 1999). Nonetheless, “[w]e have consistently enforced
knowing and voluntary appeal waivers according to their terms.” United States v.
Bascomb,
451 F.3d 1292, 1294 (11th Cir. 2006). We apply “a strong presumption
that [a defendant’s] statements made during the [plea] colloquy are true.” United
States v. Medlock,
12 F.3d 185, 187 (11th Cir. 1994).
We conclude that Salgado knowingly and voluntarily waived his right to
appeal his sentence. See
Johnson, 541 F.3d at 1066;
Bushert, 997 F.2d at 1350.
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Salgado signed the plea agreement containing the sentence-appeal waiver, and the
district court fully informed him about the waiver and its exceptions, after which
Salgado confirmed that he understood and agreed to the waiver and its exceptions.
See
Bushert, 997 F.2d at 1352-53. We apply a strong presumption that Salgado’s
statements were true. See
Medlock, 12 F.3d at 187.
Further, none of the exceptions to the waiver was satisfied here. Salgado’s
33-month sentence and 3-year term of supervised release were not an upward
departure or variance above his guideline range, his sentence does not exceed the
statutory maximum sentence of 10 years’ imprisonment, see 18 U.S.C. § 924(a)(2),
and the government has not appealed. Lastly, Salgado’s 33-month sentence,
imposed within his advisory guideline range, does not constitute the type of
extreme due process violation that would necessitate review despite his valid
appeal waiver. See
Howle, 166 F.3d at 1169 n.5.
Salgado’s sentencing challenges are barred by his valid appeal waiver; we
therefore dismiss his appeal without addressing the merits of his substantive
reasonableness challenge.
APPEAL DISMISSED.
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