United States v. Kelvin Vera

USCA11 Case: 22-12450 Document: 26-1 Date Filed: 03/14/2023 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12450
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN VERA,
a.k.a. Kevin Vera,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00349-KKM-CPT-3
USCA11 Case: 22-12450 Document: 26-1 Date Filed: 03/14/2023 Page: 2 of 3
2 Opinion of the Court 22-12450
____________________
Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Kelvin Vera appeals his 135-month sentence for conspiring
to possess cocaine with intent to distribute it while on board a ves-
sel subject to the jurisdiction of the United States in violation of 46
U.S.C. §§ 70503(a), 70506(a),(b). In response, the Government
moves to dismiss this appeal based on Vera’s appeal waiver. We
agree with the government and therefore dismiss.
We review the validity of a sentence appeal waiver de novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A
sentence appeal waiver will be enforced if it was made knowingly
and voluntarily. United States v. Bushert, 997 F.2d 1343, 1350 (11th
Cir. 1993). To establish the waiver was knowing and voluntarily,
the government must show either that: (1) the court specifically
questioned the defendant about the waiver during the plea collo-
quy; or (2) the record makes clear that the defendant otherwise un-
derstood the full significance of the waiver. Id. at 1351.
“An appeal waiver includes the waiver of the right to appeal
difficult or debatable legal issues or even blatant errors.” United
States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005). Still,
we have recognized some narrow exceptions that permit us to re-
view an appeal despite an appeal waiver, such as for a sentence
based on a constitutionally impermissible factor or in excess of the
statutory maximum penalty. Bushert, 997 F.2d at 1350 n. 18.
USCA11 Case: 22-12450 Document: 26-1 Date Filed: 03/14/2023 Page: 3 of 3
22-12450 Opinion of the Court 3
Here, Vera pleaded guilty to conspiracy to possess with in-
tent to distribute cocaine while on board a vessel subject to the ju-
risdiction of the United States. As part of the plea agreement, Vera
waived 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 Guide-
lines.” The plea agreement reserved Vera’s right to appeal based
on “(a) the ground that the sentence exceeds the defendant’s appli-
cable guidelines range as determined by the Court pursuant to the
United States Sentencing Guidelines; (b) the ground that the sen-
tence exceeds the statutory maximum penalty; or (c) the ground
that the sentence violates the Eighth Amendment to the Constitu-
tion.” A magistrate judge inquired, and Vera confirmed, that he un-
derstood he was otherwise relinquishing the right to appeal his sen-
tence.
On appeal, Vera claims his 135-month sentence—a sentence
below the guidelines range—is substantively unreasonable. His ap-
peal is not based upon any permitted grounds reserved under the
plea agreement, nor does not fit within one of our narrow excep-
tions permitting us to look past an appeal waiver. See id. Vera’s
appeal waiver was knowing and voluntary based on his confirma-
tion that he understood its terms before the magistrate judge. Id.
at 1351.
Therefore, the appeal is DISMISSED.