                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            JANUARY 5, 2007
                              No. 05-16535                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 05-20393-CR-KMM

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                                   versus

TEDDY GARCIA,

                                                    Defendant-Appellant.


                        ________________________

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

                              (January 5, 2007)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Teddy Garcia appeals his conviction and 262-month sentence for conspiracy
to possess with intent to distribute marijuana plants, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A)(vii) and 846. After review, we affirm Garcia’s conviction and

dismiss his appeal of his sentence.

                                I. BACKGROUND

      Garcia was arrested for operating a marijuana “grow house.” After Garcia

was indicted by a grand jury on four drug counts, the government filed an

information pursuant to 21 U.S.C. § 851(a), giving Garcia notice that it intended to

pursue an enhanced penalty under § 841(b)(1)(A) based on Garcia’s prior felony

drug offenses.

      Garcia, represented by counsel, engaged in plea negotiations with the

government and ultimately entered into a plea agreement. Under the plea

agreement, Garcia agreed to plead guilty to the drug conspiracy charge and the

government agreed to dismiss the remaining counts. The parties also agreed that

Garcia’s offense involved 426 marijuana plants. Based on the agreed number of

marijuana plants, during plea negotiations, the parties believed that Garcia’s

guidelines base offense level would be 20, pursuant to U.S.S.G. § 2D1.1, and that

his advisory guidelines range would fall below the statutory minimum ten-year

sentence. Thus, the parties believed Garcia likely would receive the statutory

minimum of ten years in prison.



                                           2
      Nonetheless, Garcia’s plea agreement stated, inter alia, that Garcia faced a

minimum term of imprisonment of ten years and a statutory maximum term of

imprisonment of life. Garcia also stipulated in the plea agreement that the

government had complied with § 851 and that he was subject to an enhanced

penalty of ten years imprisonment under § 841(b)(1)(A) as a result of his prior

felony drug convictions. The plea agreement stated that the sentence would be

imposed pursuant to the Sentencing Guidelines, based in part on the results of the

presentence investigation report (“PSI”), and that the district court was required to

consider the guidelines in sentencing Garcia, but was not required to impose a

guidelines sentence.

      The plea agreement also stated that “the defendant understands and

acknowledges that the court has the authority to impose any sentence within and up

to the statutory maximum[,] . . . and that the defendant may not withdraw the plea

solely as a result of the sentence imposed.” The plea agreement further stated that

Garcia was aware that the sentence had not yet been determined by the district

court and that “any estimate of the probable sentencing range or sentence that the

defendant may receive, whether that estimate comes from the defendant’s attorney,

the government, or the probation office, is a prediction, not a promise, and is not

binding on the government, the probation office or the court.”



                                          3
      The plea agreement also contained a sentence appeal waiver in which Garcia

agreed to waive his right to appeal any sentence, unless “the sentence exceeds the

maximum permitted by statute or is the result of an upward departure from the

guideline range that the court establishes at sentencing.” The sentence appeal

waiver also released Garcia from the waiver if the government filed an appeal.

      At Garcia’s plea hearing, the district court confirmed that Garcia: (1) was

satisfied with his counsel’s representation, (2) had read and understood the plea

agreement, and (3) had not been induced by promises or assurances to enter into

the plea. The district court reminded Garcia that it could sentence him to a more

severe sentence than recommended by the government or anticipated by Garcia and

that Garcia’s guidelines range could not be determined until after the PSI had been

completed. Garcia also indicated that he understood that the sentence could be

different than any estimate given by his counsel, that the district court was free to

sentence outside the guidelines range, and that Garcia was giving up his right to

appeal all or part of his sentence. After concluding that Garcia’s plea was free and

voluntary, the district court accepted Garcia’s guilty plea.

      Garcia’s PSI recommended a base offense level of 37 because Garcia was a

career offender pursuant to U.S.S.G. § 4B1.1 based on his prior felony convictions.

After a three-level reduction for acceptance of responsibility, the PSI calculated a



                                           4
total offense level of 34 and a criminal history category of VI, resulting in an

advisory guidelines range of 262 to 327 months’ imprisonment.

      After Garcia’s PSI was prepared, Garcia moved to withdraw his guilty plea.

Garcia argued that he had not fully understood the consequences of his guilty plea

because, during plea negotiations, the parties believed that Garcia was exposing

himself to only a ten-year sentence and overlooked that he was subject to § 4B1.1’s

career offender enhancement.

      The district court denied Garcia’s motion to withdraw his guilty plea. In

support of its ruling, the district court noted that Garcia had close assistance of

counsel during plea negotiations and understood, based on the express terms of the

plea agreement and the plea colloquy, that the district court could sentence him up

to the maximum term of life imprisonment and that any estimates provided by his

counsel were merely a prediction. The district court also found that Garcia’s plea

had been knowing and voluntary, that judicial resources would not be conserved by

permitting Garcia to withdraw his guilty plea and that the government would be

prejudiced if Garcia was allowed to withdraw his guilty plea.

      At sentencing, the district court overruled Garcia’s objection to a role

enhancement and denied Garcia’s request for a downward departure from the

guidelines range because his criminal history was not over-represented. After



                                           5
noting the factors in 18 U.S.C. § 3553(a), the district court sentenced Garcia to 262

months’ imprisonment, which was at the bottom of the advisory guidelines range.

Garcia filed this appeal.

                                      II. DISCUSSION

       On appeal, Garcia argues that the district court abused its discretion in

denying his motion to withdraw his guilty plea and also argues that the district

court erred at sentencing. After review, we affirm Garcia’s conviction and dismiss

his appeal of his sentence based on Garcia’s valid sentence appeal waiver.

A.     Motion to Withdraw Guilty Plea

       Garcia contends that the parties’ misunderstanding during plea negotiations

about the advisory guidelines range he faced provides a fair and just reason for

withdrawing his plea.1

       After the district court has accepted a plea and before sentencing, a

defendant may withdraw a guilty plea if “the defendant can show a fair and just

reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In

determining whether the defendant has met his burden to show a fair and just

reason, a district court “may consider the totality of the circumstances surrounding


       1
         We “review the denial of a request to withdraw a guilty plea for abuse of discretion.”
United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003). A decision regarding a plea
withdrawal request is not an abuse of discretion unless it is “arbitrary or unreasonable.” United
States v. Weaver, 275 F.3d 1320, 1328 n.8 (11th Cir. 2001).

                                                6
the plea.” United States v. Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988).

Factors to consider include whether (1) close assistance of counsel was available;

(2) the plea was knowing and voluntary; (3) judicial resources would be conserved;

and (4) the government would be prejudiced if the defendant were allowed to

withdraw his plea. Id. “The good faith, credibility and weight of a defendant’s

assertions in support of a motion [to withdraw a guilty plea] are issues for the trial

court to decide.” Id. at 472.

      Here, the district court did not abuse its discretion in determining, based on

the totality of the circumstances, that Garcia had failed to provide a “fair and just

reason” for withdrawing his plea. First, the district court considered the

appropriate factors, namely: (1) that Garcia had close assistance of counsel; (2) that

Garcia’s decision to plead guilty was knowing and voluntary; (3) that judicial

resources would not be conserved by granting the motion; and (4) that the

government would be prejudiced if the plea was withdrawn.

      Garcia’s arguments focus solely on one of the Buckles factors – the

voluntariness of his plea. Garcia essentially contends that his plea was not

knowing and voluntary because he (and the government) were operating under the

mistaken impression that his maximum possible sentence under the guidelines was

the statutory ten-year minimum. This argument is without merit. The plea



                                           7
agreement and the plea colloquy unambiguously establish that Garcia understood

at the time of his plea that any estimates given to him by either his counsel or the

government were merely predictions and not guarantees, and that the district court

had the discretion under the post-Booker advisory guidelines scheme to sentence

Garcia up to the statutory maximum of life. Indeed, the plea agreement expressly

states that Garcia cannot withdraw his guilty plea based on the sentence imposed.

Under these circumstances, the erroneous predictions by his counsel and the

government as to Garcia’s guidelines calculations do not provide a “fair and just

reason” for withdrawing Garcia’s plea.2 See United States v. Pease, 240 F.3d 938,

941 (11th Cir. 2001) (affirming the denial of a motion to withdraw guilty plea

based on the defendant’s contention that he relied on his attorney’s sentencing

prediction, which failed to take account of defendant’s career offender status,

because the district court advised defendant during the plea colloquy that the

statutory maximum sentence was life and that the court was not bound by

counsel’s predictions).

B.     Sentence Appeal Waiver



       2
         Because the record is not sufficiently developed, we decline to address on direct appeal
Garcia’s argument that his sentencing counsel rendered ineffective assistance of counsel in
failing to advise him of his status as a career offender under the guidelines. See United States v.
Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir. 1994) (holding that an ineffective assistance claim
“is more appropriately raised in a proceeding under 28 U.S.C. § 2255”).

                                                 8
       Garcia argues that his 262-month sentence is unreasonable because it is

double what the parties contemplated during plea negotiations and also violates

Booker because it is based on prior convictions not charged in his indictment or

proven to a jury. We do not address these arguments because they are foreclosed

by the sentence appeal waiver in Garcia’s plea agreement.

       A waiver of the right to appeal is enforceable if it is knowing and voluntary

and will be enforced in almost all circumstances. United States v. Bushert, 997

F.2d 1343, 1350 (11th Cir. 1993).3 To enforce the appeal waiver, the government

need only demonstrate that “either (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. Upon reviewing the plea

agreement, the transcripts of the plea hearing and the parties’ briefs, we conclude

that Garcia’s sentence appeal waiver is enforceable and requires us to dismiss

Garcia’s sentencing claims.

       Garcia’s plea agreement clearly states that Garcia waives his right to appeal

his sentence unless the district court imposes a sentence above the statutory



       3
        Whether a defendant knowingly and voluntarily waived his right to appeal is a question
of law that we review de novo. United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir.
1997).

                                               9
maximum or departs upward from the guidelines range or the government files an

appeal. At the plea hearing, Garcia admitted that he had read the plea agreement

and discussed it with his counsel and that he understood its terms. More

importantly, the district court specifically discussed with Garcia that Garcia had a

right to appeal his sentence, but, by entering the plea agreement and pleading

guilty, Garcia was waiving that right.

      Garcia argues that his appeal of his sentence falls outside the waiver

provision because the district court’s sentence, being so much greater than the

imprisonment term the parties expected during plea negotiations, was the

“functional equivalent” of an upward departure. This contention is without merit.

Garcia’s advisory guidelines range was 262 to 327 months. The district court

sentenced Garcia at the bottom of that range. It did not “upwardly

depart” from that range. Because Garcia knowingly and voluntarily waived his

right to appeal his sentence on the grounds asserted in his brief, we dismiss his

appeal of his sentence.

      For the forgoing reasons, we affirm Garcia’s conviction and dismiss the

appeal of his sentence.

      AFFIRMED IN PART; DISMISSED IN PART.




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