                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                       MARCH 6, 2008
                                                    THOMAS K. KAHN
                              No. 07-13894
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 05-00399-CR-BBM-3-1

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                   versus

GUSTAVO MUNGUIA-RAMIREZ,

                                                   Defendant-Appellant.

                        ________________________

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

                              (March 6, 2008)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Gustavo Munguia-Ramirez appeals his conviction for conspiracy to possess
with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C.

§§ 841(b)(1)(A)(ii) and 846. Conceding that his Rule 11 plea colloquy was error-

free, he nevertheless argues that his guilty plea and appeal waiver were not

knowing and voluntary because his counsel underestimated the final sentence prior

to his guilty plea and surrounding circumstances caused him to depend on that

estimate. We AFFIRM.

                                 I. BACKGROUND

      Munguia-Ramirez, a native and citizen of Mexico who is illegally present in

the United States, was indicted for: (1) conspiracy to possess with intent to

distribute at least five kilograms of cocaine, in violation of 21 U.S.C.

§§ 841(b)(1)(A)(ii) and 846 (Count 1); and (2) possession with intent to distribute

at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and

846, and 18 U.S.C. § 2 (Count 2). Munguia-Ramirez agreed to plead guilty to

Count 1, and the government agreed to dismiss count 2, pursuant to a plea

agreement.

      The plea agreement stated that Munguia-Ramirez would be subject to a

mandatory minimum prison term of ten years and maximum term of life in prison.

It also explained that the exact sentence to be imposed could not be predicted at the

time of the plea colloquy and that the court would consult the Sentencing



                                           2
Guidelines and other factors in arriving at a sentence. The agreement stated that

the district court had the discretion to sentence Munguia-Ramirez up to the

statutory maximum of life in prison. The agreement also contained a waiver

provision whereby Munguia-Ramirez waived the right to appeal his conviction or

sentence, or to collaterally attack his sentence, unless the sentence constituted an

upward departure from the guidelines range or the government first appealed the

sentence. Munguia-Ramirez acknowledged his understanding of these provisions

by signing the agreement.

      Munguia-Ramirez appeared at the Rule 11 plea hearing with counsel and

aided by an interpreter, although his primary counsel was not present. He

acknowledged, under oath, that he had reviewed the plea agreement with his

counsel, that he understood it, and that he had signed it. He stated that he had a

high school education and, although he did not speak English, he communicated

with his counsel through an interpreter. He stated that he understood that the

statutory sentencing range was ten years to life in prison and that he was waiving

the right to appeal his sentence or conviction, directly or on collateral attack; and

confirmed that he had talked to counsel about the appeal waiver and understood it.

      When asked whether anyone had promised him anything outside of the

agreement or whether anybody had made a promise regarding his specific



                                           3
sentence, Munguia-Ramirez said “no.” R4 at 11. His counsel and the prosecutor

also stated that they had not made any promises regarding his sentence. The court

explained that the Guidelines range was then unknown because it would be based

on the probation officer’s subsequent report, and Munguia-Ramirez stated that he

understood. He acknowledged that he knew the court was not bound by the

Guidelines range. He also stated that he understood that, if his sentence turned out

to be more severe than what he and his primary counsel had discussed, he would

still be bound by his guilty plea. Following this plea colloquy, in accepting his

plea, the court found that Munguia-Ramirez was pleading guilty voluntarily and

with full knowledge and understanding of the charge against him and the

consequences of his plea.

      At the sentencing hearing, the court agreed to certain reductions in Munguia-

Ramirez’s offense level, including the safety-valve reduction, pursuant to U.S.S.G.

§ 5C1.2 (2005), which allowed for a sentence below the mandatory minimum of

ten years. Counsel for Munguia-Ramirez also argued for a reduction in his

sentence based on his cooperation with authorities in the face of threats to him and

his wife by others involved in the drug conspiracy. The court arrived at an offense

level of 28, reduced from the base offense level of 36, and a criminal history

category of I, which resulted in a guidelines range of 78-97 months of



                                          4
imprisonment. The court imposed a low-end, within-range sentence of 78 months

and a five-year term of supervised release. The court also noted that Munguia-

Ramirez was not a United States citizen, and would likely be deported upon his

release.

      The court entered judgment on the 78-month sentence on 5 May 2006, and

neither Munguia-Ramirez nor the government immediately sought to appeal.

Several months later, however, Munguia-Ramirez filed a pro se motion to vacate,

under 28 U.S.C. § 2255, wherein he challenged his conviction on four different

grounds: (1) his guilty plea was not knowing and voluntary because his attorney

had him sign the sentencing papers after telling him his sentence would be 60

months or less; (2) his conviction resulted from evidence seized from an unlawful

search and arrest; (3) he was denied effective assistance of counsel because his

attorney had lied to him and had him sign the plea agreement papers; and (4) he

was denied the right to appeal because his attorney had not responded to his

question about an appeal and had never come to see him after sentencing.

      In its response, the government acknowledged that Munguia-Ramirez might

be entitled to an out-of-time appeal if he had requested an appeal and his attorney

had failed to file one, or if his attorney had failed to consult with him regarding an

appeal. The government argued that his other claims should fail.



                                           5
      In August 2007, the district court found that Munguia-Ramirez should be

entitled to an evidentiary hearing as to whether he had been denied his right to

appeal, but it also found that such a hearing was unnecessary because the

government would be unable to establish the facts necessary to prevail because of

the time elapsed since his sentencing. Therefore, the court gave Munguia-Ramirez

an opportunity to appeal by vacating the May 2006 judgment, then reimposing the

judgment and ordering the clerk to file a notice of appeal on his behalf.

Accordingly, the court re-entered judgment against Munguia-Ramirez on 21

August 2007, and he timely appealed the judgment that same day, with appointed

counsel later entering an appearance on his behalf.

                                   II. DISCUSSION

      We review the validity of a guilty plea and the corresponding appeal waiver

for plain error when a defendant has failed to object at the district court level.

United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir. 1999). Under the plain

error standard, “there must be (1) an error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Williams, 469 F.3d 963, 966 (11th Cir. 2006)

(per curiam). If those conditions are met, we will “notice the error only if the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation and citation omitted). In order to demonstrate that an



                                            6
error during the plea colloquy affected substantial rights, the defendant

      must show a reasonable probability that, but for the error, he would
      not have entered the plea. A defendant must thus satisfy the judgment
      of the reviewing court, informed by the entire record, that the
      probability of a different result is ‘sufficient to undermine confidence
      in the outcome’ of the proceeding.

United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340

(2004).

      A defendant’s guilty plea must be knowing and voluntary in order to be

constitutionally valid. United States v. Brown, 117 F.3d 471, 476 (11th Cir. 1997).

Rule 11 of the Federal Rules of Criminal Procedure imposes plea procedure

requirements on the district court primarily to “avoid the danger of an involuntary

guilty plea coerced by judicial intervention.” See United States v. Diaz, 138 F.3d

1359, 1363 (11th Cir. 1998). We consider three core principles to determine

whether a guilty plea was voluntary: “(1) the guilty plea must be free from

coercion; (2) the defendant must understand the nature of the charges; and (3) the

defendant must know and understand the consequences of his guilty plea.”

Mosley, 173 F.3d at 1322 (citation omitted).

      Because an appeal waiver is one of the consequences of a guilty plea, the

waiver must also be knowing and voluntary. See United States v. Frye, 402 F.3d

1123, 1129 (11th Cir. 2005) (per curiam); United States v. Bushert, 997 F.2d



                                          7
1343, 1350-51 (11th Cir. 1993). “[I]n most circumstances, for a sentence appeal

waiver to be knowing and voluntary, the district court must have specifically

discussed the sentence appeal waiver with the defendant during the Rule 11

hearing.” Bushert, 997 F.2d at 1351; see also Fed. R. Crim. P. 11(b)(1)(N)

(requiring the court to inform the defendant of, and make sure the defendant

understands “the terms of any plea-agreement provision waiving the right to appeal

or to collaterally attack the sentence” before accepting a guilty plea).

      When a defendant enters a guilty plea pursuant to Rule 11 proceedings,

“there is a strong presumption that the statements made during the colloquy are

true” and his plea is knowing and voluntary. United States v. Gonzalez-Mercado,

808 F.2d 796, 800 n.8 (11th Cir. 1987). However, a defendant’s guilty plea is not

knowing and voluntary if he pled guilty on the advice of counsel and that counsel

rendered ineffective assistance because his advice was outside of “the range of

competence demanded of attorneys in criminal cases.” Hill v. Lockhart, 474 U.S.

52, 56-57, 106 S. Ct. 366, 369 (1985). Nevertheless, we do not consider claims of

ineffective assistance of counsel raised on direct appeal, unless the record is

sufficiently developed, because such claims are more properly considered pursuant

to 28 U.S.C. § 2255 motions. United States v. Bender, 290 F.3d 1279, 1284 (11th

Cir. 2002); see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S. Ct.



                                           8
1690, 1694 (2003).

      The record demonstrates that Munguia-Ramirez’s guilty plea and appeal

waiver were valid. His sworn statements at the Rule 11 plea hearing and in the

signed plea agreement conclusively indicate that he understood (1) the possible

range for his sentence and (2) that he could not withdraw his plea even if the

sentence ultimately imposed was more severe than what he had discussed with his

counsel. He also confirmed that he was not relying on any outside promise in

pleading guilty. The plea colloquy and the plea agreement each clearly indicate

that Munguia-Ramirez had discussed the appeal waiver with counsel. The court

explained the waiver to him, and he stated that he understood it. The record before

us does not support Munguia-Ramirez’s claim that his guilty plea or appeal waiver

was unknowing or involuntary due to his counsel’s estimate of the ultimate

sentence or any other outside factors. See Gonzalez-Mercado, 808 F.2d at 800 n.8.

Therefore, the district court did not plainly err in finding that his guilty plea and

appeal waiver were knowing and voluntary.

      To the extent Munguia-Ramirez depends upon an ineffective assistance of

counsel argument, however, we find that the record is not sufficiently developed to

consider that argument on direct appeal. Although he claims that, prior to pleading

guilty, counsel estimated that he would receive a 60-month sentence, the record



                                            9
does not reveal that any such estimation or promise was made, how the alleged

estimation was communicated to him, or any other facts surrounding such an

estimation. See Massaro, 538 U.S. at 504-05, 123 S. Ct. at 1694; Bender, 290 F.3d

at 1284. Accordingly, we decline to consider it.1

                                 III. CONCLUSION

      Munguia-Ramirez appeals his conviction for conspiracy to possess with

intent to distribute cocaine. Because the district court’s Rule 11 plea colloquy in

this case was without error, and because the record before us does not support

Munguia-Ramirez’s claim that his guilty plea or appeal waiver was unknowing or

involuntary due to his counsel’s estimate of the ultimate sentence or any other

outside factors, we AFFIRM his conviction. We decline, however, to consider his

ineffective assistance of counsel claim because the record is insufficiently

developed.




      1
       Munguia-Ramirez may wish to pursue this claim under 28 U.S.C. § 2255. See Bender,
290 F.3d at 1284.

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