              Case: 18-10393     Date Filed: 10/01/2018    Page: 1 of 5


                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-10393
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 8:17-cr-00012-RAL-TBM-4

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

LUIS VIVAS CIFUENTES,

                                                                Defendant-Appellant.
                           ________________________

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

                                  (October 1, 2018)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Luis Vivas Cifuentes appeals his 87-month sentence for conspiracy to

possess with intent to distribute 5 kilograms or more of cocaine while aboard a

vessel subject to the jurisdiction of the United States. He argues the district court
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should have given him a mitigating role adjustment under United States Sentencing

Guidelines § 3B1.2. The government moved to dismiss Cifuentes’s appeal based

on the sentence-appeal waiver in his plea agreement. The government argues that

Cifuentes knowingly and voluntarily waived his right to appeal his sentence on the

grounds he raises in this appeal. Cifuentes responds that the waiver is

unconstitutional because his right to appeal did not exist when he signed the plea

agreement. After careful review, we agree that Cifuentes’s waiver is enforceable

and dismiss this appeal.

                                         I.

      “We review the validity of a sentence appeal waiver de novo.” United

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Such waivers are valid

and enforceable if they are made knowingly and voluntarily. United States v.

Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 1993). The government can

demonstrate a waiver was knowing and voluntary by showing 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. at 1351. When reviewing the plea colloquy, we

look for clear language from the district court explaining what the defendant is

giving up. See id. at 1352–53 (concluding the district court’s confusing language

about the sentence-appeal waiver made it unclear whether the defendant

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understood that he was giving up his appeal rights). Also, we “strong[ly]

presum[e] that the statements made during the colloquy are true.” United States v.

Medlock, 12 F.3d 185, 187 (11th Cir. 1994).

                                         II.

      Section 6 of the plea agreement, titled “Defendant’s Waiver of Right to

Appeal the Sentence,” stated that Cifuentes agreed to

      waive[] the right to appeal [his] sentence on any ground, including the
      ground that the Court erred in determining the applicable guidelines
      range pursuant to the United States Sentencing Guidelines, except (a)
      the ground that the sentence exceeds [his] applicable guidelines range
      as determined by the Court pursuant to the United States Sentencing
      Guidelines; (b) the ground that the sentence exceeds the statutory
      maximum penalty; or (c) the ground that the sentence violates the
      Eighth Amendment to the Constitution[.]

Cifuentes does not contend that his claims on this appeal fall into these exceptions.

Thus, if the waiver is valid, we must dismiss his appeal.

      Cifuentes argues that the waiver is unconstitutional because, in his view, his

statutory right to appeal did not exist when he signed the plea agreement. His

argument relies on Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582 (2005), in

which the Supreme Court stated, “Halbert, in common with other defendants

convicted on their pleas, had no recognized right to appointed appellate counsel he

could elect to forgo.” Id. at 623, 125 S. Ct. at 2594. Cifuentes argues that he had

no statutory right to appeal at the time he entered the plea and, under Halbert,


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could not waive what he had no right to do. This argument is foreclosed by

binding precedent. In Bushert, this court held that a criminal defendant can waive

his right to a direct appeal as part of a plea agreement, so long as the waiver is

knowing and voluntary. 997 F.2d at 1350. Halbert, which established defendants’

right to appointed counsel for purposes of Michigan’s system of first-tier appellate

review, 545 U.S. at 623, 125 S. Ct. at 2594, did not overrule our precedent in

Bushert.

      During the plea colloquy, Cifuentes said he understood the court’s questions,

the nature of the proceeding, the court’s explanations of his plea agreement, and

the rights he was giving up by pleading guilty. In response to the court’s

questions, Cifuentes said he was forty-two years old and he had about a third-grade

education. Although he could not understand English, Cifuentes said he reviewed

the plea agreement with his counsel who speaks Spanish and was assisted by an

interpreter “on virtually every occasion” they met. Cifuentes confirmed he had no

problem communicating with his counsel. He said he was not under the influence

of any drugs, medication, or alcohol and had not been treated for any mental

illness. The district court gave detailed explanations of the right to appeal and the

sentence-appeal waiver, and Cifuentes said he understood that he was giving up his

right to appeal by pleading guilty. In short, there is nothing in the record indicating

Cifuentes did not understand the waiver and its consequences or otherwise

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rebutting the “strong presumption that the statements made during the colloquy are

true.” See Medlock, 12 F.3d at 187. And Cifuentes has not pointed to, nor have

we otherwise identified, anything in the record indicating the waiver provision or

the court’s colloquy was confusing or misleading. See Bushert, 997 F.2d at 1352–

53.

      On this record, the government’s motion to dismiss is GRANTED.




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