USCA11 Case: 21-12809 Date Filed: 04/15/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12809
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAUSTO HURTADO-CANDELO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00404-WFJ-JSS-2
____________________
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2 Opinion of the Court 21-12809
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Fausto Hurtado-Candelo appeals his 135-month sentence
for conspiring to distribute cocaine on the high seas. He challenges
the district court’s failure to grant him a minor-role reduction
under the Sentencing Guidelines. However, in his plea agreement,
Hurtado-Candelo waived the right to appeal his sentence, subject
to some discrete, inapplicable exceptions. Citing Hurtado-
Candelo’s sentence appeal waiver, the government moves to
dismiss his appeal. Because Hurtado-Candelo knowingly and
voluntarily agreed to waive his right to appeal his sentence, and
that waiver applies in this case, we grant the government’s motion
and dismiss Hurtado-Candelo’s appeal.
I. Background
In September 2019, the U.S. Coast Guard intercepted a
vessel in international waters west of Colombia carrying four
smugglers—Hurtado-Candelo and three others—and an estimated
5,000 to 8,000 kilograms of cocaine. The Coast Guard took the
smugglers to Florida, where they were indicted for conspiring to
distribute and possess with intent to distribute cocaine while on the
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21-12809 Opinion of the Court 3
high seas, in violation of
46 U.S.C. §§ 70503 and 70506, and for
aiding and abetting each other in the same.1
In August 2020, Hurtado-Candelo pleaded guilty to the
conspiracy charge.2 In his plea agreement, Hurtado-Candelo
agreed to waive his right to appeal his sentence, subject to several
discrete exceptions. The plea agreement’s waiver provision stated
that:
The defendant agrees that this Court has jurisdiction
and authority to impose any sentence up to the
statutory maximum and expressly waives the right to
appeal defendant’s sentence on any ground, including
the ground that the Court erred in determining the
applicable guidelines range pursuant to the United
States Sentencing Guidelines, except (a) the ground
that the sentence exceeds the defendant’s applicable
guidelines range as determined by the Court pursuant
to the United States Sentencing Guidelines; (b) the
ground that the sentence exceeds the statutory
1
Title 46 of the United States Code criminalizes the manufacture, distribution,
or possession with intent to distribute of controlled substances while on board
a vessel subject to the jurisdiction of the United States. See
46 U.S.C.
§ 70503(a)(1), (e)(1). It also provides that “[a] person attempting or conspiring
to violate section 70503 of this title is subject to the same penalties as provided
for violating section 70503.”
Id. § 70506(b).
2
The aiding-and-abetting charge against Hurtado-Candelo was dismissed at
sentencing. Separately, and at different times, each of Hurtado-Candelo’s
three codefendants pleaded guilty to their respective conspiracy charges as
well.
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4 Opinion of the Court 21-12809
maximum penalty; or (c) the ground that the
sentence violates the Eighth Amendment of the
Constitution; provided, however, that if the
government exercises its right to appeal the sentence
imposed, as authorized by
18 U.S.C. § 3742(b), then
the defendant is released from his waiver and may
appeal the sentence as authorized by
18 U.S.C.
§ 3742(a).
(emphasis omitted).
Before accepting Hurtado-Candelo’s plea, the magistrate
judge conducted a change-of-plea hearing, at which she advised
Hurtado-Candelo of the rights he was giving up by pleading guilty
and ensured that Hurtado-Candelo’s plea was knowing and
voluntary. Responding to the magistrate judge’s questions,
Hurtado-Candelo confirmed that he understood the charge to
which he was pleading guilty and that he had reviewed his plea
agreement with his counsel. The magistrate judge then proceeded
to review the terms of Hurtado-Candelo’s plea agreement with
him, including his waiver of his right to appeal his sentence. With
respect to the plea agreement’s waiver provision, the magistrate
judge informed Hurtado-Candelo that:
You’re also expressly waiving and giving up your
right to appeal your sentence to a higher court on any
ground, including the ground that the Court made a
mistake in determining your applicable Guideline
range, using the United States Sentencing Guidelines.
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21-12809 Opinion of the Court 5
The magistrate judge further informed Hurtado-Candelo that
“[t]here’s only four very limited grounds . . . that would remain for
you to be able to appeal your sentence to a higher court,” and that
“[t]he four very limited grounds that would remain . . . as a basis
for you to appeal are as follows”:
First, you can appeal on the ground that your
sentence exceeds your applicable Guideline range, as
determined by the Court, using the United States
Sentencing Guidelines.
Second, you can appeal on the ground that your
sentence exceeds the statutory maximum penalty.
Third, you can appeal on the ground that your
sentence violates the Eighth Amendment to the
Constitution, which prohibits cruel and unusual
punishment.
And, fourth, if the government appeals, you can
appeal.
The magistrate judge then reiterated to Hurtado-Candelo that,
“[o]ther than those four very limited bases, you’re giving up and
waiving your right to appeal your sentence to a higher court.”
Lastly, the magistrate judge specifically confirmed with Hurtado-
Candelo that he was “making that decision freely and voluntarily,
to give up and waive your right to appeal your sentence to a higher
court.”
Following the change-of-plea hearing, the magistrate judge
issued a report and recommendation in which she recommended
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6 Opinion of the Court 21-12809
that the district court accept Hurtado-Candelo’s plea. Shortly
thereafter, the district court adopted the magistrate judge’s
recommendation and accepted the plea.
Prior to sentencing, the U.S. Probation Office prepared a
presentence investigation report (PSI) for Hurtado-Candelo.
Among other things, the PSI set out the relevant conduct of
Hurtado-Candelo and his codefendants for purposes of
determining the scope of their conspiracy. Based on statements
from Hurtado-Candelo and one of his codefendants, the PSI stated
that Hurtado-Candelo’s role, along with another of the three
persons on the vessel, was to serve as a “mariner” in charge of
piloting the vessel to its destination; that the remaining two
persons were, respectively, the “captain” and “mechanic” of the
vessel; and that, when Hurtado-Candelo boarded the vessel, the
cocaine was already stowed and hidden from sight. The PSI noted
that the statutory maximum term for Hurtado-Candelo’s offense
was life and, based on Hurtado-Candelo’s offense level and
criminal history, recommended a Guidelines range of 168–210
months.
In July 2021, the district court sentenced Hurtado-Candelo.
At the sentencing hearing, Hurtado-Candelo objected to the PSI’s
failure to include a two-point reduction in his offense level for his
“minor” role in the conspiracy pursuant to U.S.S.G. § 3B1.2. 3
3
Section 3B1.2 of the Guidelines—the “Mitigating Role” section—provides
that:
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21-12809 Opinion of the Court 7
Hurtado-Candelo advanced two arguments in support of his
requested minor-role reduction. First, he argued that the district
court should consider his conduct in light of the actions of other
unidentified persons on either side of the drug distribution chain.
To that end, Hurtado-Candelo sought to introduce testimony from
a DEA agent who had worked on Hurtado-Candelo’s case.
However, the district court rejected his argument without hearing
witness testimony, principally because Hurtado-Candelo sought to
expand the relevant conspiracy conduct while simultaneously
refusing to increase the amount of cocaine for which the
conspirators were responsible.
Second, Hurtado-Candelo argued that, even if the court
considered only the actions of the four codefendants, Hurtado-
Candelo should still receive a minor-role reduction. In support, he
called the DEA agent—who he had attempted to call earlier in the
hearing—to testify about his role as a “mariner” in the smuggling
conspiracy. Nevertheless, the district court rejected his request for
a minor-role reduction, emphasizing, among other things, the
Based on the defendant’s role in the offense, decrease the
offense level as follows:
(a) If the defendant was a minimal participant in any
criminal activity, decrease by 4 levels.
(b) If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
U.S.S.G. § 3B1.2.
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8 Opinion of the Court 21-12809
tremendous monetary value of the smuggled cocaine and the fact
that Hurtado-Candelo was paid “twice as much” as one of the other
codefendants for his role in the conspiracy.
Over Hurtado-Candelo’s objections, the district court
adopted the PSI, including its recommended Guidelines range of
168–210 months. On the government’s recommendation, the
district court then applied a three-point downward departure to
Hurtado-Candelo’s offense level for substantial assistance, leading
to a revised Guidelines range of 121–151 months. The district court
sentenced Hurtado-Candelo to a mid-Guidelines sentence of 135
months’ imprisonment. Hurtado-Candelo timely appealed.
Shortly thereafter, the government filed a motion to dismiss the
appeal based on Hurtado-Candelo’s sentence appeal waiver.
II. Discussion
“A plea agreement is, in essence, a contract between the
Government and a criminal defendant. Among the considerations
that a defendant may offer as part of such a contract is waiver of his
right to appeal, provided that the waiver is made knowingly and
voluntarily.” United States v. Howle,
166 F.3d 1166, 1168 (11th Cir.
1999). “When a defendant attempts to appeal a sentence in the face
of an appeal waiver, the government may file a motion to dismiss
the appeal based upon the waiver.” United States v. Buchanan,
131
F.3d 1005, 1008 (11th Cir. 1997). To establish that an appeal waiver
was knowing and voluntary, “the government must show that
either (1) the district court specifically questioned the defendant
concerning the sentence appeal waiver during the [plea] colloquy,
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21-12809 Opinion of the Court 9
or (2) it is manifestly clear from the record that the defendant
otherwise understood the full significance of the waiver.” United
States v. Bushert,
997 F.2d 1343, 1351 (11th Cir. 1993).
We enforce knowing and voluntary appeal waivers
“according to their terms.” United States v. Boyd,
975 F.3d 1185,
1190 (11th Cir. 2020) (quotation omitted). “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.” Howle,
166 F.3d at 1169. In negotiating plea
agreements, defendants are “free to bargain away [their] right to
raise constitutional issues as well as non-constitutional ones.”
United States v. Bascomb,
451 F.3d 1292, 1297 (11th Cir. 2006).
On the other hand, “an effective waiver is not an absolute
bar to appellate review.” United States v. Johnson,
541 F.3d 1064,
1068 (11th Cir. 2008). “[T]here are certain fundamental and
immutable legal landmarks within which the district court must
operate regardless of the existence of sentence appeal waivers.”
Bushert,
997 F.2d at 1351 n.18. We have stated that “[k]ey concepts
of equal protection might [] defeat the enforcement of a waiver if
the defendant was sentenced deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary
classification.”
Id. (quotation omitted). And we have indicated
that, “[i]n extreme circumstances,” such as “a public flogging,”
“due process may require that an appeal be heard despite a
previous waiver.” Howle,
166 F.3d at 1169 n.5.
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Hurtado-Candelo’s plea agreement contains a valid
sentence appeal waiver. In the plea agreement, subject to four
discrete exceptions, Hurtado-Candelo “expressly waive[d] the right
to appeal [his] sentence on any ground, including the ground that
the Court erred in determining the applicable guidelines range
pursuant to the United States Sentencing Guidelines.” We have no
doubt that Hurtado-Candelo’s sentence appeal waiver was
knowing and voluntary. At his change-of-plea hearing, the
magistrate judge ascertained Hurtado-Candelo’s competency,
confirmed that he had reviewed his plea agreement with his
attorney, and explicitly questioned him in detail about his sentence
appeal waiver. Indeed, Hurtado-Candelo concedes that his plea
agreement’s sentence appeal waiver “was explained to him, and
that he acknowledged it was understood.”
Moreover, Hurtado-Candelo’s sentence appeal waiver
applies to this case. On appeal, Hurtado-Candelo challenges the
district court’s decision not to apply a minor-role reduction in
calculating his Guidelines range. That challenge does not fall
within any of the four discrete exceptions to the sentence appeal
waiver set out in Hurtado-Candelo’s plea agreement, which allows
him to appeal his sentence if, and only if: (1) “the sentence exceeds
the defendant’s applicable guidelines range as determined by the
Court pursuant to the United States Sentencing Guidelines”; (2)
“the sentence exceeds the statutory maximum penalty”; (3) “the
sentence violates the Eighth Amendment to the Constitution”; or
(4) “the government exercises its right to appeal the sentence
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21-12809 Opinion of the Court 11
imposed.” Hurtado-Candelo does not base his challenge to his
sentence on any of these grounds: he does not assert that his
sentence exceeded either the Guidelines range the district court
calculated or his statutory maximum, he advances no Eighth
Amendment argument, and the government has not appealed
Hurtado-Candelo’s sentence. Indeed, Hurtado-Candelo’s
challenge to the district court’s calculation of his Guidelines range
falls within the express grounds included in his sentence appeal
waiver, which explicitly prohibits him from challenging his
sentence on the basis that the district court “erred in determining
[his] applicable guidelines range.” A clearer application of a
sentence appeal waiver is hard to imagine.
Notwithstanding his valid appeal waiver, Hurtado-Candelo
argues that we can decide his appeal because he was denied
“fundamental procedural due process” at his sentencing hearing
and therefore suffered a “miscarriage of justice.” In essence, he
claims that, although he was allowed to put on witness testimony
at his sentencing hearing regarding his “minor” role in the
conspiracy to distribute cocaine, the district court infringed on his
due process rights by not allowing him to introduce that testimony
before the district court determined the relevant conspiracy
conduct. We doubt that this argument has merit, but need not,
and do not, decide its merits, because Hurtado-Candelo’s sentence
appeal waiver precludes it. We have repeatedly dismissed
sentencing appeals raising constitutional issues, including due
process issues, where an appeal waiver precluded them. See, e.g.,
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United States v. Rubbo,
396 F.3d 1330, 1335 (11th Cir. 2005)
(dismissing appeal due to waiver that included due process and
Sixth Amendment claims under Apprendi v. New Jersey,
530 U.S.
466 (2000), and its progeny); Bascomb,
451 F.3d at 1297 (collecting
cases in which we have enforced appeal waivers in cases involving
constitutional challenges). And, although some other circuits have,
we have never adopted a “miscarriage of justice” exception to
appeal waivers. See Johnson,
541 F.3d at 1069 n.5.
Granted, “[i]n extreme circumstances . . . due process may
require that an appeal be heard despite a previous waiver.” Howle,
166 F.3d at 1169 n.5. But Hurtado-Candelo has presented no
extreme circumstances. At its core, his dispute is simply that the
district court miscalculated his Guidelines range by denying him a
role reduction—a garden-variety sentencing challenge if ever there
was one.
For the foregoing reasons, we GRANT the government’s
motion to dismiss Hurtado-Candelo’s appeal based on the sentence
appeal waiver in the plea agreement. The appeal is DISMISSED.
