              Case: 18-14580     Date Filed: 10/21/2019   Page: 1 of 5


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-14850
                             Non-Argument Calendar
                           ________________________

                  D.C. Docket No. 8:16-cr-00389-SDM-TGW-3


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

MARCIAL CUERO-CUERO,

                                                              Defendant-Appellant.
                           ________________________

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

                                (October 21, 2019)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Marcial Cuero-Cuero appeals his sentence of 235 months of imprisonment

after pleading guilty, pursuant to a written agreement, to conspiracy to possess with
              Case: 18-14580     Date Filed: 10/21/2019    Page: 2 of 5


intent to distribute 5 kilograms or more of cocaine, while on board a vessel subject

to the jurisdiction of the United States. The government has moved to dismiss

Cuero-Cuero’s appeal based on the sentence-appeal waiver in his plea agreement.

      Under the plea agreement, Cuero-Cuero agreed to plead guilty to conspiracy

to possess with intent to distribute five kilograms or more of cocaine, while on board

a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§

70503(a), 70506(a), (b) and 21 U.S.C. § 960(b)(1)(B)(ii). The plea agreement

contained an appeal waiver, in which Cuero-Cuero expressly agreed to waive the

right to appeal “[his] sentence on any ground,” except on grounds that (1) the

sentence exceeded the defendant’s applicable guidelines range “as determined by

the Court pursuant to the United States Sentencing Guidelines,” (2) the sentence

exceeded the statutory maximum penalty, or (3) the sentence violated the Eight

Amendment. The appeal waiver released Cuero-Cuero from its provisions if the

government appealed the sentence imposed.

      The magistrate judge recommended acceptance of Cuero-Cuero’s guilty plea

after conducting a plea colloquy at which Cuero-Cuero and his interpreter were

placed under oath. During this colloquy, the magistrate judge confirmed that Cuero-

Cuero’s counsel spoke Spanish to him directly, and Cuero-Cuero indicated that he

understood the Spanish being spoken to him by his counsel and the interpreter.



                                          2
              Case: 18-14580      Date Filed: 10/21/2019   Page: 3 of 5


Cuero-Cuero confirmed that he had reviewed the plea agreement with his counsel

and understood each page of it.

      The magistrate judge also went over the plea agreement. Among other

aspects, the magistrate judge reviewed the appeal waiver and informed Cuero-Cuero

that it allowed him to appeal only if the sentence exceeded the guidelines range as

determined by the court or the statutory maximum penalty or if it violated the Eighth

Amendment. Cuero-Cuero verified he understood and said he had no questions

about the waiver. Cuero-Cuero also acknowledged that he could not appeal the

manner in which the district court calculated his sentencing guidelines. He stated

that, as part of the plea agreement, he was freely and voluntarily agreeing to waive

his right to appeal as a part of the plea agreement. Cuero-Cuero agreed that no one

had forced or coerced him into doing so, no one had promised him anything other

than what was contained in his plea agreement, no one had coached him to testify

other than the truth, and his answers were truthful.

      Based on the magistrate judge’s colloquy with Cuero-Cuero, as relevant here,

the magistrate judge found that Cuero-Cuero was alert and understood the

consequences of pleading guilty and that Cuero-Cuero was pleading guilty freely,

voluntarily, and knowingly, with the advice of counsel with whom he stated he was

satisfied. The magistrate judge recommended that the guilty plea be accepted by the



                                          3
               Case: 18-14580     Date Filed: 10/21/2019    Page: 4 of 5


district court. With no objections filed, the district court accepted the guilty plea and

adjudged Cuero-Cuero guilty.

      At sentencing, based on a total offense level of 37 and a criminal-history

category of II, the district court calculated Cuero-Cuero’s guideline range at 235 to

293 months’ imprisonment. The district court sentenced Cuero-Cuero to 235

months’ imprisonment.

      On appeal, Cuero Cuero argues that his sentence is substantively

unreasonable. The government has moved to dismiss the appeal, based on the appeal

waiver.

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

Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A district court must confirm that

a defendant understands “the terms of any plea agreement provision waiving the

right to appeal or to collaterally attack the sentence.” Fed. R. Crim. P 11(b)(1)(N).

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 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.



                                           4
              Case: 18-14580    Date Filed: 10/21/2019   Page: 5 of 5


      Here, the record establishes that Cuero-Cuero knowingly and voluntarily

agreed to the appeal waiver. The district court expressly explained the waiver to

Cuero-Cuero and allowed him an opportunity to ask any questions concerning it.

Cuero-Cuero expressly said he understood the provision and acknowledged that no

one had forced or coerced him to sign it. Therefore, we enforce the appeal waiver.

      Cuero-Cuero’s challenge on appeal to the substantive reasonableness of his

sentence does not fall within any exceptions to the appeal waiver, and the

government did not appeal. Accordingly, we grant the government’s motion to

dismiss the appeal.

      APPEAL DISMISSED.




                                        5
