                                                                             [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-12334         ELEVENTH CIRCUIT
                                        Non-Argument Calendar    DECEMBER 28, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                               D.C. Docket No. 1:10-cr-20133-PAS-2



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                                         lPlaintiff-Appellee,

                                                versus

MAURICE DWIGHT MARSHALL,
a.k.a. Maurice Marshall,

                                           llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                          (December 28, 2011)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:

         Maurice Marshall appeals his convictions and 108-month total sentence for
conspiracy to possess with intent to distribute a detectable amount of Oxycodone,

in violation of 21 U.S.C. § 846, and possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that: (1) the district

court erroneously denied his motion for reconsideration of the denial of his motion

to suppress; (2) the government breached the plea agreement when it failed to

return property not included in the final order of forfeiture; and (3) the district

court erroneously denied his request for a minor role reduction. For the reasons

set forth below, we affirm Marshall’s convictions and dismiss his appeal of his

sentences.

                                           I.

      Marshall was indicted for, among other things, conspiring to possess with

intent to distribute a substance containing a detectable amount of Oxycodone, in

violation of 21 U.S.C. § 846, and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). The indictment included a forfeiture provision,

which specified that $7,137, a 9-millimeter pistol, and 10 rounds of 9-millimeter

ammunition were subject to forfeiture.

      He filed a motion to suppress, which the district court ultimately denied.

Marshall then filed a motion for reconsideration of that denial, which the court

also denied.

                                           2
      Marshall and the government entered into a written plea agreement. The

agreement contained an appeal waiver, under which Marshall waived his right to

appeal his sentence unless it exceeded the statutory maximum sentence or the

court imposed an upward departure, variance, or both from the guideline range it

established. Marshall would also be released from the appeal waiver if the

government appealed his sentence.

      At the change of plea hearing, Marshall testified that he had been able to

communicate with his attorney, he and his attorney had thoroughly discussed the

case, his attorney had answered all of his questions to his satisfaction, he was

satisfied with his attorney’s advice and representation, and he had discussed every

page of the plea agreement with his attorney before signing it. No one had

threatened Marshall to persuade him to accept the plea agreement and plead guilty,

nor had anyone made him any promises not contained in the plea agreement. He

was aware of the elements the government would have to prove before he could be

found guilty.

      Marshall further testified that he understood that, by pleading guilty, he was

giving up his right not to incriminate himself, to a trial, to be represented by an

attorney at trial, to have an attorney appointed for trial if he could not afford one,

to see and cross-examine the government’s witnesses, to testify or not testify

                                           3
without having his decision held against him by the jury, and to call and subpoena

witnesses in his defense. Marshall was aware that his maximum sentence for

violating 21 U.S.C. § 846 was 20 years’ imprisonment, 3 years’ supervised

release, and a $1 million fine. He was aware that his maximum sentence for

violating 18 U.S.C. § 922(g)(1) was 10 years’ imprisonment, 3 years’ supervised

release, and a $250,000 fine.

      The court discussed the appeal waiver, and Marshall testified that he was

aware that he was waiving his right to appeal his sentence unless it exceeded the

statutory maximum sentence or the court imposed an upward departure from the

guideline range as determined at sentencing. He understood that, even if the court

made a mistake in calculating his guideline range, he would not be able to appeal

that mistake. He had discussed the appeal waiver with his attorney, was freely and

voluntarily waiving his right to appeal, and had no reservations about his decision.

The court found that Marshall had freely, voluntarily, and knowingly waived his

right to appeal his sentence.

      The court also discussed the items that would be subject to forfeiture, and

the government and Marshall’s attorney agreed that $7,137, the gun, and the

ammunition were subject to criminal forfeiture. However, Marshall’s attorney

argued that $3,170 and jewelry found on Marshall’s person were not listed in the

                                         4
indictment. His attorney further stated that the government had told him that it

could not make any promises as to the return of those items, and that he

understood that he could attempt to recover those items through an administrative

procedure. The government stated that, separately from the criminal case, it would

seek to administratively forfeit the $3,170 and jewelry. The court accepted

Marshall’s guilty plea.

      Prior to sentencing, upon the government’s motion, the court entered a

preliminary order of forfeiture of the gun and ammunition listed in the indictment.

At sentencing, Marshall’s attorney stated that the court could enter a final order of

forfeiture for the gun and ammunition. The government asked that the $7,137

listed in the indictment be forfeited. As to his guideline calculations, Marshall

objected that he should have received a minor role reduction. The court denied

this request and stated that his guideline range was 108 to 135 months’

imprisonment. The court imposed a 108-month sentence for each count, to run

concurrently, and forfeited Marshall’s right to the property identified in the

preliminary order of forfeiture. The court entered a final order of forfeiture of the

gun and ammunition.

                                          II.

      A defendant waives all nonjurisdictional defects when he pleads guilty

                                          5
“knowingly, voluntarily, and with the benefit of competent counsel.” United

States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984). A claim that the government

illegally obtained evidence is nonjurisdictional. United States v. Sepe, 474 F.2d

784, 788 (5th Cir.), aff’d on reh’g en banc, 486 F.2d 1044 (1973). A guilty plea is

knowing and voluntary if the defendant entered the plea without coercion and with

an understanding of the nature of the charges and the consequences of the plea.

United States v. Brown, 586 F.3d 1342, 1346 (11th Cir. 2009), cert. denied, 130

S.Ct. 2403 (2010). “There is a strong presumption that the statements made

during the [plea] colloquy are true.” United States v. Medlock, 12 F.3d 185, 187

(11th Cir. 1994). The defendant “bears a heavy burden to show” that statements

made under oath at a plea colloquy were false. United States v. Rogers, 848 F.2d

166, 168 (11th Cir. 1988).

      Marshall has waived his right to appeal the denial of his motion for

reconsideration of the denial of his motion to suppress because he pleaded guilty

knowingly, voluntarily, and with competent counsel. See Yunis, 723 F.2d at 796.

At the change of plea hearing, Marshall testified that no one had threatened him to

persuade him to plead guilty, and that no one had made him any promises that

were not in the plea agreement. Thus, he pleaded guilty free from coercion. See

Brown, 586 F.3d at 1346. He was also aware of the nature of the charges, as he

                                         6
testified that he was aware of the elements the government would have to prove

before he could be found guilty. See id. Marshall was aware of the consequences

of his plea. See id. He testified that he understood that, by pleading guilty, he was

giving up his right not to incriminate himself, to go to trial with the assistance of

an attorney, to see and cross-examine the government’s witnesses, to testify or not

testify, and to call and subpoena witnesses in his defense. Further, he was aware

of his maximum sentences, terms of supervised release, and fines for the counts to

which he was pleading.

      Finally, Marshall pleaded guilty with competent counsel, as evidenced by

his testimony that he had been able to communicate with his attorney, he and his

attorney had thoroughly discussed the case, his attorney had answered all of his

questions to his satisfaction, he was satisfied with his attorney’s advice and

representation, and he had discussed every page of the plea agreement with his

attorney before signing it. Marshall has not shown that any of his testimony was

not true. See Rogers, 848 F.2d at 168. Because Marshall pleaded guilty

knowingly, voluntarily, and with competent counsel, he waived review of the

court’s determination that the government’s evidence was not obtained illegally,

and we affirm without addressing the merits of his argument. See Sepe, 474 F.2d

at 788.

                                           7
                                           III.

      We generally review de novo the question of whether the government

breached a plea agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th

Cir. 2004). However, where a defendant fails to object to an alleged breach before

the district court, we review only for plain error. United States v. Romano, 314

F.3d 1279, 1281 (11th Cir. 2002). Plain error exists where (1) there is an error;

(2) that is plain; (3) that affected the defendant’s substantial rights; and (4) that

“seriously affect[ed] the fairness, integrity, or public reputation of the judicial

proceedings.” Id. The first step in determining whether the government breached

a plea agreement is to “determine the scope of the government’s promises.”

Copeland, 381 F.3d at 1105. In so doing, we apply an objective standard to

determine “whether the government’s actions [were] inconsistent with what the

defendant reasonably understood when” he pleaded guilty. Id. (quotation

omitted). Where a plea agreement is unambiguous, we will not consider extrinsic

evidence of the agreement’s meaning. Id. at 1105-06.

      Because Marshall did not object that the government breached the plea

agreement before the district court, this claim is subject to plain error review. See

Romano, 314 F.3d at 1281. There is no error in this case because the government

did not breach the plea agreement. The plea agreement did not contain any

                                            8
provision in which the government agreed to make any effort to return Marshall’s

property. Moreover, even assuming arguendo that the plea agreement was

ambiguous, the government expressly stated at the change of plea hearing that it

would seek administrative forfeiture of the $3,170 and jewelry. Thus, Marshall

could not reasonably have interpreted his plea agreement to mean that the

government would return the jewelry and money to him. Accordingly, the

government did not breach the plea agreement, and we affirm.

                                         IV.

      We review the validity of a sentence appeal waiver de novo. United States

v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). A sentence appeal waiver

contained in a plea agreement is enforceable if it was made knowingly and

voluntarily. Id. at 1350-51. For an appeal waiver to be enforceable, the

government must demonstrate either that “(1) the district court specifically

questioned the defendant concerning the sentence appeal waiver during the Rule

11 colloquy, or (2) it is manifestly clear from the record that the defendant

otherwise understood the full significance of the waiver.” Id. at 1351.

      Marshall knowingly and voluntarily waived his right to appeal his

sentences. The district court specifically questioned him about the sentence

appeal waiver during his plea colloquy, and he indicated that he understood the

                                          9
waiver and was freely and voluntarily waiving his right to appeal his sentences.

Therefore, Marshall’s appeal waiver was made knowingly and voluntarily, and he

may not appeal his sentences unless an exception to the appeal waiver applies.

See Bushert, 997 F.2d at 1350-51. Marshall’s sentences of 108 months for each

count did not exceed the statutory maximum sentences of 20 years for violating 21

U.S.C. § 846 or 10 years for violating 18 U.S.C. § 922(g)(1). Nor did his

108-month total sentence exceed his guideline range of 108 to 135 months as

determined by the court. Finally, Marshall is not released from the appeal waiver

because the government did not appeal his sentences first. Accordingly, Marshall

has not met an exception to his sentence appeal waiver, and we dismiss the appeal

of his sentences.

      For the foregoing reasons, we affirm Marshall’s convictions and dismiss his

appeal of his sentences.

      AFFIRMED IN PART AND DISMISSED IN PART.




                                        10
