                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                 No. 06-12337                 ELEVENTH CIRCUIT
                                                                  NOV 29, 2006
                             Non-Argument Calendar
                                                               THOMAS K. KAHN
                           ________________________
                                                                    CLERK

                    D. C. Docket No. 04-00632-CR-01-CAP-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                       versus

KORAK JEROME MANUEL,

                                                          Defendant-Appellant.

                           ________________________

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

                               (November 29, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Korak Jerome Manuel appeals his 168-month sentence, which was imposed

after he pled guilty pursuant to a written plea agreement, to seven counts of unarmed
bank robbery. On appeal, Manuel argues the following: (1) the district court erred by

denying an offense-level reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1; and (2) the district court’s sentence, which was an upward variance

from the Guidelines range of 108 to 135 months’ imprisonment, was unreasonable.

After careful review, we dismiss in part and affirm in part.

      The facts relevant to the instant sentencing claims are straightforward. On

October 25, 2005, by second superceding indictment, Manuel was charged with

sixteen counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(1); one

count of armed bank robbery, in violation of 18 U.S.C. § 2113(d); and one count of

using and carrying a firearm in connection with a crime of violence, in violation of

18 U.S.C. § 924(c). At Manuel’s arraignment, the government moved to dismiss four

of the unarmed bank robbery counts and Manuel subsequently proceeded to a jury

trial on the remaining counts.

      On the second day of the trial, after the government had presented the

testimony of several witnesses, Manuel pled to seven counts of bank robbery, in

exchange for which the government agreed to dismiss the remaining charges, which

included the § 924(c) charge. The written plea agreement contained a waiver-of-

appeal provision, which read as follows:




                                           2
      LIMITED WAIVER OF APPEAL: To the maximum extent permitted
      by federal law, the defendant voluntarily and expressly waives the right
      to appeal his sentence and the right to collaterally attack his sentence in
      any post-conviction proceeding on any ground, except that the defendant
      may file a direct appeal of an upward departure from the otherwise
      applicable sentencing guideline range. The defendant understands that
      this Plea Agreement does not limit the Government’s right to appeal, but
      if the Government appeals the sentence imposed, the defendant may also
      file a direct appeal of his sentence.

      At a subsequent plea colloquy, the government proffered the following factual

basis for Manuel’s plea. Between approximately May 29, 2003 and November 3,

2004, Manuel robbed numerous Bank of America and SunTrust branches located

inside grocery stores. In total, about $70,000 in cash was stolen. During the

robberies, which were recorded on surveillance tapes, Manuel wore a floppy hat and

used a towel or newspaper to hide his face. Manuel was seen leaving one of the

robberies in a vehicle that was traced back to him. During a subsequent search of his

home, FBI agents found dye-stained money, and shirts that matched the clothing the

robber was wearing in the surveillance photographs. Manuel admitted his role in the

robberies and the amount of money involved, and he expressed remorse for his

conduct.

      After advising Manuel of his rights, and the limitations on his right to appeal,

the district court accepted the guilty plea. In the course of the plea colloquy, the court

advised Manuel that under the plea agreement, (1) “it’s not possible to determine

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exactly how the guidelines are going to apply to your case until a presentence report

is completed, and you and the government have had the opportunity to object and

challenge any facts [in the PSI]”; (2) the court “retained the authority . . . to impose

a sentence that is more severe or less severe than a sentence called for by the

guidelines”; and (3) Manuel was waiving his right to appeal, “which means you’ll be

bound by [my] decision, and you are also waiving your right to collaterally attack this

sentence.” Manuel indicated that he understood the provisions. The district court

then accepted Manuel’s guilty plea.

      The probation officer prepared a presentence investigation report (“PSI”),

noting that the offenses would not be grouped together. The calculations for most of

the counts were the same: a base offense level of 20 under U.S.S.G. § 2B3.1, with a

2-level enhancement under U.S.S.G. § 2B3.1(b)(1) because the offense involved a

financial institution. Thus, for these counts, the total adjusted offense level was 22.

For the robbery charged in Count 2, the PSI included an enhancement for threat of

death under U.S.S.G. § 2B3.1(b)(2)(F), in connection with a note Manuel handed to

the teller. Thus, the adjusted offense level for that count was 24. Pursuant to the

multiple-count adjustment of U.S.S.G. § 3D1.4, Manuel’s combined offense level

was increased by five points, resulting in an adjusted offense level of 29. The PSI did

not recommend a reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, noting

                                           4
that Manuel had forced the government to prepare for and proceed to trial before

entering his plea.

      The PSI calculated a criminal-history category III based on Manuel’s prior

convictions for theft-by-taking (1994), DUI (1994), battery/domestic violence (1997),

and conspiracy to commit robbery (1998). With an offense level of 29 and a criminal

history category III, the advisory Guidelines range was 108 to 135 months’

imprisonment. The PSI noted that an upward departure might be appropriate under

U.S.S.G. § 5K2.21 in consideration of the dismissed and uncharged conduct. Manuel

lodged objections to the enhancement for threat of death, the computation of his

criminal history category, and the denial of a reduction for acceptance of

responsibility.

      At the sentencing hearing, the court sustained the objections to the

enhancement for threat of death and the criminal history category, but rejected

Manuel’s argument that he was entitled to an acceptance-of-responsibility reduction.

The court found that Manuel let the case go too far before pleading guilty. With the

sustained objections to the PSI, the district court determined that the adjusted offense

level was 27 and the criminal history category was II, resulting in a Guidelines range

of 78 to 97 months’ imprisonment. Based on the terms of the plea agreement, the

government said it was not asking for an “upward departure” above the Guidelines

                                           5
range, but did request a sentence at the high end of the range. The court stated that

it was considering imposing a 180-month “upward departure” sentence, even absent

a motion by the government, noting the following factors: (1) Manuel’s criminal

history; (2) the number of robberies involved in the instant offenses; and (3) the

court’s belief that 97 months was not sufficient punishment.

      Defense counsel then told the court that Manuel had pled guilty and expressed

remorse, had a minimal criminal history, and had been employed. The court also

heard the mitigating testimony of Manuel’s mother and Manuel’s sister, who

described Manuel’s childhood, military service, and character, as well as Manuel’s

statement of remorse and request for a shorter sentence.

      After listening to the witnesses, the court noted the sentencing factors in 18

U.S.C. § 3553(a) and imposed a sentence of 168 months -- a sentence the district

court termed an “upward departure” -- in light of the nature of the offense, Manuel’s

history, the number of robberies involved, and the fact that Manuel had committed

the offenses for both the money and the thrill. The court also noted the continuous

and dangerous behavior that could have ended in violence, and stated that it had come

down from the 180-month sentence it previously had mentioned at the hearing, prior

to hearing Manuel’s mitigating testimony and statement of remorse. Manuel again

objected to a sentence above the advisory range to which the district court responded,

                                          6
“since I made an upward departure it is my belief that you can proceed with your

appeal concerning the sentence.” This appeal followed.

      First, Manuel argues he was entitled to a reduction for acceptance of

responsibility. The government urges that the waiver provision in Manuel’s plea

agreement bars this argument, and notes that Manuel does not suggest that the plea

was not knowing and voluntary.

      A sentence appeal waiver contained in a plea agreement, made knowingly and

voluntarily, is enforceable. See United States v. Bushert, 997 F.2d 1343, 1345, 1350-

51 (11th Cir. 1993); see also United States v. Copeland, 381 F.3d 1101, 1107 (11th

Cir. 2004). The waiver can include the waiver of the right to appeal “difficult or

debatable legal issues or even blatant error.” United States v. Frye, 402 F.3d 1123,

1129 (11th Cir.), cert. denied, 125 S. Ct. 2986 (2005). To enforce a sentence-appeal

waiver, the government must demonstrate either that (1) the district court specifically

questioned the defendant about the waiver during the change of plea colloquy, or (2)

the record clearly shows that the defendant otherwise understood the full significance

of the waiver. Id. at 1351.

      Here, although the appeal waiver excepts “upward departures,” we do not read

that provision to mean that even if the district court imposed an “upward departure,”

Manuel was free to appeal any and all aspects of his sentence unrelated to the

                                          7
imposition of a sentence above the advisory Guidelines range. There is no indication

in the record that Manuel misunderstood the waiver on this point, and it is clear that

he entered into the agreement, including the appeal-waiver provision, knowingly and

voluntarily. The language of the plea agreement is plain. Moreover, at the plea

colloquy hearing, the court confirmed that Manuel had discussed the waiver with

counsel and that he understood it. Thus, the appeal waiver is enforceable and it at

least       covers the challenge to the denial of a reduction for acceptance of

responsibility. Accordingly, we dismiss the appeal as to this claim.

        Manuel next argues that his sentence was unreasonable because there was

nothing about his case that falls outside the “heartland” of cases or warranted

imposition of a sentence that was 73 percent higher than the top-end of the Guidelines

range, and because the district court failed to make sufficient findings to support the

sentence above the Guidelines range, which we have termed a “variance,” not a

“departure.”1 Manuel also argues the district court’s consideration of his criminal


        1
           After United States v. Booker, 543 U.S. 220 (2005), we have explained that the term
variance refers to a sentence outside the advisory Guidelines range based on the § 3553(a) sentencing
factors. United States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir. 2006); cf. United States v. Eldick,
443 F.3d 783, 788 n.2 (11th Cir. 2006) (explaining “the record reveals that the district court, at
resentencing, did not treat its decision to sentence Eldick above the guideline range as an upward
departure, but rather as an exercise of its discretion because the court did not cite to a specific
guidelines departure provision and, in the words of the district court, the guidelines did ‘not
adequately take into account the severity of the damage done by Mr. Eldick, and, therefore, I find
that they should not be applied.’ Therefore, we conclude that we are not reviewing the propriety of
a “guidelines” departure.”); United States v. Scott, 441 F.3d 1322, 1330 (11th Cir. 2006) (declining

                                                  8
history, in the context of its § 3553(a) analysis, constituted improper double counting

because the same information was considered in calculating his criminal history

category.

       We review a district court’s interpretation of the Guidelines de novo and its

findings of fact for clear error. United States v. Jordi, 418 F.3d 1212, 1214 (11th

Cir.), cert. denied, 126 S. Ct. 812 (2005). After a district court has calculated a

defendant’s advisory Guidelines range, it “may impose a more severe or more lenient

sentence,” which we review only for reasonableness. United States v. Crawford, 407

F.3d 1174, 1179 (11th Cir. 2005). In conducting our reasonableness review, which

is highly deferential, we do not apply the reasonableness standard to each individual

decision made during the sentencing process; instead, we review only the final

sentence for reasonableness, in light of the § 3553(a) factors. United States v. Martin,

455 F.3d 1227, 1237 (11th Cir. 2006). The district court need not state on the record

that it has explicitly considered each factor and need not discuss each factor. United

States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam). Rather, an



to address sentence outside the guidelines range based on § 3553(a) factors).

       However, in light of the “upward departure” language used in the plea
agreement, at the plea colloquy, and at the sentencing hearing, in this case, we cannot
find that Manuel knowingly and voluntarily waived his right to appeal the imposition
of sentence above the Guidelines range.
                                                9
acknowledgment by the district court that it has considered the defendant’s arguments

and the § 3553(a) factors will suffice. Id.

      Here, the district court considered Manuel’s arguments for a lesser sentence

and noted his mitigating evidence, but was persuaded to impose a harsher sentence

because of the seriousness of the crime, including the number of robberies involved,

the fact that Manuel used threats as part of the offenses, and the fact that Manuel

continued to commit the robberies for the “thrill” of it. The district court also

highlighted Manuel’s criminal history. Thus, the district court’s ruling plainly

reflects consideration of the § 3553(a) factors, including: the nature and

circumstances of the offense; the history and characteristics of Manuel; the advisory

Sentencing Guidelines range; and the need for the sentence to reflect the seriousness

of the offense, promote respect for the law, and provide just punishment. See 18

U.S.C. § 3553(a). Moreover, the district court explicitly discussed the application of

the § 3553(a) factors as necessary to determine a reasonable sentence. On this record,

Manuel cannot satisfy his burden to show that the district court imposed an

unreasonable sentence. Accordingly, we affirm.

      DISMISSED IN PART AND AFFIRMED IN PART.




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