              Case: 17-13423     Date Filed: 10/02/2018    Page: 1 of 4


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 17-13423
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 1:16-cr-00139-RWS-JKL-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

UBLESTER GAMA-HERNANDEZ,
a.k.a. Rudolfo Veledias Gonzalez,

                                                                Defendant-Appellant.

                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                  (October 2, 2018)

Before TJOFLAT, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM:

      Ublester Gama-Hernandez appeals the 97-month sentence imposed after he

pled guilty to possession with intent to distribute at least 100 grams of heroin, in
              Case: 17-13423     Date Filed: 10/02/2018    Page: 2 of 4


violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and illegal

reentry into the United States, in violation of 8 U.S.C. § 1326(a), (b)(2).

      The government filed a motion to dismiss Gama-Hernandez’s appeal, based

on the sentence appeal waiver in his plea agreement. In response, Gama-

Hernandez argues he did not understand the full consequences of the plea

agreement. Because he does not speak English and had only a ninth-grade

education, he argues the court’s explanation of the appeal-waiver was not

sufficient to ensure he understood he would not be able to appeal the calculation of

the guideline range. Gama-Hernandez also argues the plea agreement itself was

insufficient to show that he understood the full significance of the appeal waiver.

      This Court reviews de novo the validity of a sentence appeal waiver. 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, 1351 (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 concerning the sentence-appeal

waiver” during the plea colloquy; or (2) the record makes clear “the defendant

otherwise understood the full significance of the waiver.” Id.

      The appeal waiver contained in Gama-Hernandez’s plea agreement states:


                                           2
              Case: 17-13423    Date Filed: 10/02/2018   Page: 3 of 4


      To the maximum extent permitted by federal law, the Defendant
      voluntarily and expressly waives the right to appeal his conviction and
      sentence . . . on any ground, except that the Defendant may file a
      direct appeal of an upward departure or upward variance above the
      sentencing guideline range as calculated by the district court. Claims
      that Defendant’s counsel rendered constitutionally ineffective
      assistance are excepted from this waiver. The Defendant understands
      that this Plea Agreement does not limit the Government’s right to
      appeal, but if the Government initiates a direct appeal of the sentence
      imposed, the Defendant my file a cross-appeal of that same sentence.

Gama-Hernandez signed the plea agreement as well as a statement that said he

read, understood, and reviewed the plea agreement with his attorney; that he

voluntarily agreed to the plea agreement’s terms; and that he discussed with his

attorney that the appeal-waiver provision would prevent him from appealing his

sentence. His attorney also signed a statement acknowledging that he had carefully

reviewed the charges and plea agreement with Gama-Hernandez.

      During the change-of-plea hearing, a Spanish language interpreter was

present and sworn-in. Gama-Hernandez said he had reviewed the plea agreement

with his counsel as well as signed the last page of the agreement and the

acknowledgement statement. He also said the government’s explanation of the

plea agreement during the hearing reflected his understanding of it.

      The district court specifically questioned Gama-Hernandez about the plea

agreement. The government read the appeal waiver provision into the record, and

the court explained that, pursuant to the agreement, Gama-Hernandez had given up

his rights to appeal. The court said Gama-Hernandez could only appeal if the court
                                         3
              Case: 17-13423     Date Filed: 10/02/2018   Page: 4 of 4


imposed a sentence greater than the guidelines it calculated called for or the

government appealed. Gama-Hernandez confirmed he understood the appeal

waiver. His attorney also said he had discussed the appeal waiver with Gama-

Hernandez with the assistance of a Spanish-speaking interpreter. Gama-Hernandez

also confirmed no one had forced him, threatened him, or promised him anything

to get him to sign the waiver. The court accepted his plea.

      At the sentencing hearing, the court determined the applicable total offense

level was 27 and criminal history was category III, which resulted in an advisory

guideline range of 87- to 108-months imprisonment. The court imposed a mid-

range sentence of 97-months imprisonment.

      Under these circumstances, Gama-Hernandez made a knowing and

voluntary waiver of his right to appeal. See Bushert, 997 F.2d at 1351. The

exceptions to the appeal waiver do not apply because the 97-month sentence was

not above the guideline range calculated by the district court, the government did

not appeal, and Gama-Hernandez has not claimed ineffective assistance of counsel.

      For these reasons, the government’s motion to dismiss is GRANTED.




                                          4
