             Case: 12-14691      Date Filed: 05/16/2013   Page: 1 of 4


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-14691
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00471-RAL-AEP-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

THOMAS C. BEASLEY,
a.k.a. Thomas Clifton Beasley,


                                                              Defendant-Appellant.

                          ________________________

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

                                  (May 16, 2013)

Before TJOFLAT, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
              Case: 12-14691      Date Filed: 05/16/2013   Page: 2 of 4


      On December 9, 2011, the District Court sentenced Thomas Beasley to a

prison term of 140 months after he plead guilty pursuant to a plea agreement to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e). In sentencing Beasley, the court granted the Government’s substantial

assistance motion pursuant to U.S.S.G. § 5K1.1 and reduced his offense level by

one level.

      Beasley’s plea agreement contains a sentence appeal waiver.

Notwithstanding the waiver, Beasley appeals his sentence, arguing that (1) the

court erred in failing to consider, apply, and explain the § 5K1.1 factors, and (2)

the Government breached the plea agreement by failing to properly apprise the

court of his substantial assistance. The Government, responding, contends that

Beasley’s appeal is barred by the appeal waiver.

      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, 1351 (11th Cir. 1993). To establish that the waiver was made

knowingly and voluntarily, the Government must show either that (1) the 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.


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      Here, it is clear from the plea agreement and the plea colloquy that Beasley

knowingly and voluntarily waived his right to appeal his sentence. During the plea

colloquy, the court specifically informed him of the presence of the appeal waiver

and verified that he understood it. See Bushert, 997 F.2d at 1351. Moreover, even

if the court’s questions regarding the sentence appeal waiver were insufficiently

specific, he signed the overall plea agreement and initialed the page containing the

waiver. This, combined with his responses during the plea colloquy, make it

manifestly clear that Beasley understood the full significance of the waiver. See id.

No exception to Beasley’s appeal waiver applies, nor does Beasley contend that it

does. Accordingly, we dismiss this portion of Beasley’s appeal.

      An appeal waiver does not foreclose a defendant’s appeal that the

government breached the plea agreement at sentencing. See United States v.

Copeland, 381 F.3d 1101, 1104-05 (11th Cir. 2004) (holding that defendant

retained right to appeal breach of plea agreement where appeal waiver stated that

“the defendant knowingly waives the right to appeal any sentence imposed in the

instant case . . . .”). Here, Beasley failed to inform the District Court at sentencing

that the Government was breaching the plea agreement in not fully advising the

court of his substantial assistance; hence, we review this claim for plain error. See

United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006) (holding that, where

the defendant fails to object in the district court, this court reverses only for plain


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error). To establish plain error, a defendant must show there is (1) error, (2) that is

plain, and (3) that affects substantial rights. United States v. Moriarty, 429 F.3d

1012, 1019 (11th Cir. 2005). If all three conditions are met, we may exercise our

discretion to correct the error if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. The government violates a written plea

agreement when its conduct is inconsistent with the agreement’s terms that

reasonably were understood by the defendant when entering the guilty plea.

United States v. Nelson, 837 F.2d 1519, 1521-22 (11th Cir. 1988).

       We find no error here, much less plain error. Beasley cites no binding

precedent, and we find none, that would have put the District Court on notice that,

in moving the court to reduce Beasley’s offense level pursuant to § 5K1.1, the

Government was breaching the plea agreement and that the court had a duty to

intervene sua sponte and derail the breach.

       In sum, pursuant to the appeal waiver, we dismiss the appeal of the court’s

purported failure to properly consider, explain and apply the § 5K1.1 factors. As

for Beasley’s argument that the Government breached the plea agreement, we find

no merit.

       DISMISSED, in part; AFFIRMED, in part.




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