           Case: 14-12015   Date Filed: 10/15/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12015
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:13-cr-00173-ACC-TBS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ALAN GREGORY ENDER,

                                                         Defendant-Appellant.

                       ________________________

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

                            (October 15, 2015)



Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.


PER CURIAM:
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      Alan Ender appeals his 600-month total sentence after pleading guilty to two

counts of production of child pornography, in violation of 18 U.S.C. § 2251(a)

(Counts 1 and 4), and one count of possession of child pornography, in violation of

18 U.S.C. § 2252A (Count 11). On appeal, Ender argues that (1) his sentence

appeal waiver was not knowing and voluntary; (2) the district court erred in

calculating his guideline range, denying his request for a downward variance under

18 U.S.C. § 3553(a), and imposing a substantively unreasonable sentence; and

(3) his total sentence violated the Eighth Amendment’s ban on cruel and unusual

punishment. In response, the Government maintains that Ender’s sentence appeal

waiver precludes all of his claims other than his Eighth Amendment claim, which

fails under plain error review.

      After review, we affirm Ender’s total sentence but vacate the judgment and

remand for the limited purpose of correcting a clerical error in the judgment.

                                   I. DISCUSSION

A. Sentence 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 sentence appeal waiver will

be enforced if it was made knowingly and voluntarily. Id. A defendant knowingly

and voluntarily waives his right to appeal his sentence if either (a) the district court

specifically questioned the defendant about the waiver during the plea colloquy, or


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(b) the record makes clear that the defendant otherwise understood the full

significance of the waiver. Id.

       Ender asserts that his sentence appeal waiver is unenforceable because his

mental state prevented him from understanding the consequences of the waiver.

The record, however, does not support Ender’s argument. During the plea

colloquy, Ender, who speaks English and holds a bachelor’s degree, represented to

the district court that, in the past, he had seen a mental health professional for

depression and substance abuse. Mental illness alone does not invalidate a guilty

plea if the defendant was nevertheless competent to enter the plea. Bolius v.

Wainwright, 597 F.2d 986, 990 (5th Cir. 1979).1 Ender stated that his mental

competency had never been questioned or challenged and that he felt clear minded.

He further noted that he had not taken any alcohol or drugs within the preceding 48

hours and was not under the influence of drugs or alcohol or anything that might

interfere with his ability to think or concentrate. Additionally, the court asked

Ender’s counsel if he had questions regarding Ender’s competency to enter a plea,

and Ender’s counsel stated that he did not. See United States v. Rodriguez, 799

F.2d 649, 655 (11th Cir. 1986) (explaining that defense counsel’s failure to raise

the issue of the defendant’s competency is persuasive evidence that the defendant


       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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was competent). As such, the district court correctly determined that Ender was

competent to plead guilty pursuant to a plea agreement containing a sentence

appeal waiver provision.

      Moreover, during the plea colloquy, the district court inquired into the

sentence appeal waiver provision of the plea agreement. Ender stated that he had

discussed the provision with his attorney and that he understood that he was

waiving his right to appeal his total sentence. The court asked if Ender understood

that he would be released from the waiver only if the Government appealed

Ender’s total sentence, and Ender said he understood. The court mentioned that

there were limited grounds upon which Ender could appeal his total sentence, and

Ender confirmed that he had read the grounds and discussed them with his

attorney. The court asked Ender if he had any questions about the waiver, and

Ender said he did not. Finally, Ender confirmed that he was making the waiver

knowingly and voluntarily. Based on the foregoing, Ender’s sentence appeal

waiver was both knowing and voluntary, and is therefore enforceable. See

Johnson, 541 F.3d at 1066.

      Because Ender’s sentence appeal waiver is enforceable, only Ender’s Eighth

Amendment challenge to his total sentence remains. Contrary to Ender’s assertion

on appeal, Ender’s challenging his total sentence on one permitted ground does not

open the door to his challenging the sentence based upon waived grounds. The


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plea agreement expressly limits Ender’s right to appeal his sentence to the specific

enumerated grounds. Accordingly, Ender’s sentence appeal waiver forecloses his

arguments that the district court (i) did not correctly calculate his guideline range,

(ii) erred in denying a downward variance, and (iii) imposed a substantively

unreasonable total sentence.

B. Eighth Amendment

       In the district court, Ender did not object to the constitutionality of his

sentence, so we review Ender’s Eighth Amendment challenge for plain error. 2

“Plain error occurs where (1) there is an error; (2) that is plain or obvious;

(3) affecting the defendant’s substantial rights in that it was prejudicial and not

harmless; and (4) that seriously affects the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Raad, 406 F.3d 1322, 1323 (11th

Cir. 2005).

       In challenging his total sentence on Eighth Amendment grounds, Ender must

first demonstrate that the total sentence imposed is grossly disproportionate to the

offense committed. United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir.

2006). Ender’s 600-month total prison sentence was not grossly disproportionate

to his offenses and therefore did not violate the Eighth Amendment. Ender


       2
         While the Court generally reviews de novo the constitutionality of a sentence under the
Eighth Amendment, when a defendant fails to object in the district court, we review the sentence
for plain error. United States v. McGarity, 669 F.3d 1218, 1255 (11th Cir. 2012).
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possessed 478 movie files and 253 images of child pornography, many of which he

produced. He photographed and filmed three different minor victims and

inappropriately touched all of the victims while doing so. Offenses such as

Ender’s child pornography activities cause severe harm. See United States v.

Farley, 607 F.3d 1294, 1344–45 (11th Cir. 2010) (discussing the harm that arises

from sexual abuse of children in the context of Eighth Amendment gross

disproportionality analysis). In addition, a total sentence below the statutory

maximum generally does not violate the Eighth Amendment, Johnson, 451 F.3d at

1243, and Ender’s 25-year sentences as to Counts 1 and 4 were both below the

applicable 30-year statutory maximums, see 18 U.S.C. § 2251(e). Considering the

foregoing and the fact that we have never found a sentence of incarceration to

violate the Eighth Amendment, 3 Ender’s total sentence does not constitute plain

error.

                                    II. CONCLUSION

         Although we affirm Ender’s sentence, we note that there appears to be a

clerical error in the judgment. Count 1of the indictment charges Ender with

violating 18 U.S.C. § 2251(a), but the judgment lists Ender’s statute of conviction

for Count 1 as “28 U.S.C. § 2251(a).” Accordingly, we vacate and remand for the
         3
        Indeed, “outside the special category of juvenile offenders the Supreme Court has found
only one [sentence of incarceration] to do so.” Farley, 607 F.3d at 1343. The one case in which
the Supreme Court found an adult offender’s prison sentence to violate the Eighth Amendment,
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001 (1983), involved a petty criminal who wrote a bad
check for $100 and received a sentence of life imprisonment without parole. Id.
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limited purpose of correcting a clerical error in the judgment. See United States v.

Massey, 443 F.3d 814, 822 (11th Cir. 2006).

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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