                Case: 17-10565    Date Filed: 01/10/2018   Page: 1 of 7


                                                               [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 17-10565
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 1:14-cr-20400-KMW-6


UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

versus

JULIAN ARCE,

                                               Defendant - Appellant.
                            ________________________

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

                                 (January 10, 2018)

Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

         Julian Arce pled guilty to conspiracy to import into the United States more

than one kilogram of heroin and more than five kilograms of cocaine with the
               Case: 17-10565     Date Filed: 01/10/2018    Page: 2 of 7


intent to distribute, in violation of 21 U.S.C. § 963. The district court calculated the

applicable advisory Sentencing Guidelines range to be 57-71 months. The district

court also found that Mr. Arce met the “safety valve” requirements of U.S.S.G.

§5C1.2(a)(1)-(5), meaning that he would not be subject to the minimum statutory

sentence of ten years’ imprisonment. See 21 U.S.C. § 960(b)(1)(A). See also 18

U.S.C. § 3553(f)(1)-(5); U.S.S.G. §5C1.2(a).

      Under the plea agreement, the government agreed to recommend that Mr.

Arce be sentenced at the low end of the advisory guidelines range. Also in keeping

with the plea agreement, the government filed a motion pursuant to §5K1.1 of the

guidelines requesting that the court grant a downward departure for Mr. Arce’s

sentence, based on the substantial assistance he provided the government in its

investigation and prosecution of other persons. The government requested the court

reduce Mr. Arce’s sentence by 15 percent to 48 months.

      The district court granted the government’s §5K1.1 motion, and sentenced

Mr. Arce to 38 months’ imprisonment. In explaining its reduction of the sentence

to 38 months, the district court noted that under §3553, Mr. Arce had not fled

during his years of cooperation with the government. It also emphasized the danger

that Mr. Arce’s family faced in Columbia due to his cooperation with the

government, which is one factor for the court to consider when deciding on a

§5K1.1 motion. See U.S.S.G. §5K1.1(a)(4).

                                           2
              Case: 17-10565     Date Filed: 01/10/2018   Page: 3 of 7


      Mr. Arce now appeals his sentence, arguing that the district court ignored

the other factors identified in §5K1.1, and that it plainly erred in so doing. He

argues that had the court considered all of the §5K1.1 factors, it would have

reduced his sentence even further.

      As an initial matter, however, we must decide whether Mr. Arce waived his

right to appeal his sentence, which would preclude us from addressing the merits

of his challenge to his sentence. The plea agreement which Mr. Arce signed, and

which the district court accepted, contained a sentence appeal waiver.

      We conclude that Mr. Arce knowingly and voluntarily waived his right to

appeal his sentence and the manner in which the sentence was imposed, that the

waiver applies to Mr. Arce’s appeal, and that none of the exceptions to the waiver

apply. Accordingly, we dismiss Mr. Arce’s appeal.

                                         I

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

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver

will be enforced if it was executed knowingly and voluntarily. See United States v.

Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). To establish that a waiver was

made knowingly and voluntarily, the government must show that either “(1) the

district court specifically questioned the defendant about the waiver during the plea

colloquy, or (2) the record clearly shows that the defendant otherwise understood

                                         3
              Case: 17-10565     Date Filed: 01/10/2018    Page: 4 of 7


the full significance of the waiver.” United States v. Grinard-Henry, 399 F.3d

1294, 1296 (11th Cir. 2005). The district court must clearly convey to the

defendant the circumstances under which he is giving up the right to appeal. See

Bushert, 997 F.2d at 1352-53. A valid appeal waiver “includes the waiver of the

right to appeal difficult or debatable issues or even blatant error.” Grinard-Henry,

399 F.3d at 1296. Additionally, there is “a strong presumption that the statements

made during the [plea] colloquy are true.” United States v. Medlock, 12 F.3d 185,

187 (11th Cir. 1994).

                                          II

      In the provision at issue in the plea agreement, Mr. Arce waived his rights

“to appeal any sentence imposed” or “to appeal the manner in which the sentence

was imposed,” unless the sentence exceeded the statutory maximum, or was the

result of an upward departure or variance, or the government appealed. Mr. Arce is

specifically appealing his 38-month sentence and the manner in which the district

court applied §5K1.1 to the government’s motion. Because none of the exceptions

apply, there can be no question that, if the waiver is valid, it applies to the present

appeal, and Mr. Arce’s appeal must be dismissed.

      This Circuit has “consistently enforced knowing and voluntary appeal

waivers according to their terms,” particularly where the defendant acknowledges

the waiver in a plea agreement, the district court specifically questions the

                                          4
              Case: 17-10565    Date Filed: 01/10/2018   Page: 5 of 7


defendant during the plea colloquy about the appeal waiver, and the court

adequately explains the significance of the waiver and confirms that the defendant

understands the full significance of the waiver. See United States v. Bascomb, 451

F.3d 1292, 1294 (11th Cir. 2006) (collecting cases). See also Johnson, 541 F.3d at

1066; United States v. Frye, 402 F.3d 1123, 1127-29 (11th Cir. 2005); Grinard-

Henry, 399 F.3d at 1296; Williams v. United States, 396 F.3d 1340, 1341-42 (11th

Cir. 2005); United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001); United

States v. Pease, 240 F.3d 938, 942 (11th Cir. 2001); United States v. Howle, 166

F.3d 1166, 1168-69 (11th Cir. 1999); United States v. Benitez-Zapata, 131 F.3d

1444, 1446 (11th Cir. 1997); United States v. Buchanan, 131 F.3d 1005, 1007-09

(11th Cir. 1997).

      Many of the sentence appeal waivers in these cases are nearly identical to

the one in Mr. Arce’s plea agreement, with nearly the same exceptions and

limitations. Here, Mr. Arce signed the plea agreement, as did his counsel. The plea

agreement not only contained the sentence appeal waiver itself, but also a

statement confirming that “[b]y signing this agreement, the defendant

acknowledges that the defendant has discussed the appeal waiver set forth in this

agreement with the defendant’s attorney.”

      Beyond that, at the change-of-plea hearing the district court specifically

questioned Mr. Arce concerning the plea agreement and the sentence appeal

                                        5
              Case: 17-10565    Date Filed: 01/10/2018   Page: 6 of 7


waiver. Mr. Arce, who was aided by an interpreter at the hearing, confirmed that

he had signed the plea agreement, that the plea agreement had been translated into

Spanish for him prior to him signing it, that he had an adequate opportunity to

discuss it with his counsel, and that he understood fully the obligations it imposed

on him. The district court alerted Mr. Arce to the specific appeal waiver provision

and explained that he was giving up his right to appeal his sentence to a higher

reviewing court. The district court also reviewed the four circumstances where the

appeal waiver would not apply. As to all of this, Mr. Arce confirmed his

understanding.

      Based on the plea agreement and the change-of-plea colloquy between Mr.

Arce and the district court, the government has established that Mr. Arce’s appeal

waiver was entered into knowingly and voluntarily. The district court specifically

questioned Mr. Arce about the waiver during the plea colloquy, and the record

clearly shows that he otherwise understood the full significance of the waiver. See

Bushert, 997 F.2d at 1350-51. Mr. Arce has provided us no reason to reject the

“strong presumption that the statements made during the [plea] colloquy are true.”

Medlock, 12 F.3d at 187.




                                         6
              Case: 17-10565    Date Filed: 01/10/2018   Page: 7 of 7


                                       III

      Mr. Arce knowingly and voluntarily waived his right to appeal his sentence

and the manner in which the sentence was imposed, and none of the exceptions to

this waiver apply. Accordingly, Mr. Arce’s appeal is dismissed.

      DISMISSED.




                                        7
