                                                                     [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                          JANUARY 5, 2011
                               No. 09-16304
                                                             JOHN LEY
                         ________________________
                                                              CLERK

                    D. C. Docket No. 07-60051-CR-WJZ


UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                   versus

KENNETH RUFF,

                                               Defendant-Appellant.


                         ________________________

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




Before DUBINA, Chief Judge, BLACK and FAY, Circuit Judges.

BLACK, Circuit Judge:
      Kenneth Ruff appeals his 228-month total sentence, imposed after he pled

guilty to various firearm and drug offenses. The Government asserts Ruff should

not be able to appeal his sentence because in connection with his guilty plea, Ruff

signed an appeal waiver in which he agreed to waive his rights, conferred by 18

U.S.C. § 3742, to appeal any sentence imposed unless the sentence (1) exceeded

the statutory maximum, or (2) was the result of an upward departure from the

Guidelines range established by the district court at sentencing. After review, we

conclude Ruff’s appeal waiver was knowing and voluntary, and his sentence is not

within either exception to the waiver. Ruff’s appeal is barred by the appeal waiver

and we dismiss his appeal.

                                  I. DISCUSSION

A. Ruff’s appeal waiver was knowing and voluntary

      Ruff signed his plea agreement which included an appeal waiver. Upon the

court’s inquiry at his plea colloquy, Ruff confirmed that (1) he understood that he

was giving up his right to appeal any sentence imposed by the court; (2) he had

discussed with his attorney the advantages and disadvantages of giving up his

right to appeal his sentence; (3) his attorney had answered all of his questions on

this matter; (4) he had not been forced to give up his statutory right to appeal;

(5) his attorney had explained the right to appeal to him; and (6) he wished to give

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up his statutory right to appeal, subject to the terms and conditions contained in

the plea agreement. The record supports a determination that Ruff understood the

full significance of the appeal waiver, and he knowingly and voluntarily waived

his right to appeal, subject to the terms and conditions contained in the waiver.

See United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997)

(“Waiver will be enforced if the government demonstrates 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

the full significance of the waiver.”).

B. Ruff’s sentence does not fit within the exceptions contained in the waiver

      The appeal waiver provides two exceptions that allow Ruff to pursue an

appeal–if his sentence (1) exceeded the statutory maximum, or (2) was the result

of an upward departure from the Guidelines range established by the district court

at sentencing.

      1. Ruff’s sentence does not exceed the statutory maximum

      Ruff asserts his sentence is an exception to the appeal waiver because it

exceeds the statutory maximum. Ruff pled guilty to possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Three); possession

with intent to distribute marijuana, in violation of § 841(a)(1) (Count Four);

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possession of a firearm in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924(c) (Count Five); and possession of firearms and ammunition by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Six). The statutory

maximum for Counts Three and Four is 20 years’ imprisonment. See 21 U.S.C.

§ 841(b)(1)(C). The statutory maximum for Count Five is life imprisonment. See

United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000) (stating “every

conviction under § 924(c)(1)(a) carries with it a statutory maximum sentence of

life imprisonment”). Further, the statutory maximum for Count Six is life

imprisonment because Ruff was classified as an armed career criminal. See 18

U.S.C. § 924(e); United States v. Harrison, 558 F.3d 1280, 1282 n.1 (11th Cir.

2009) (“Although the [Armed Career Criminal Act] does not contain an express

maximum sentence, this Court has held that the ‘maximum sentence authorized

under § 924(e) is life imprisonment.’” (quoting United States v. Brame, 997 F.2d

1426, 1428 (11th Cir. 1993))).

      Ruff was sentenced to 19 years’ imprisonment, which is below the statutory

maximum for all four counts of which he was convicted. Ruff’s sentence does not

fit into this exception to the appeal waiver.




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       2. Ruff’s sentence was not an upward departure from the Guidelines range

       Ruff further contends his sentence was an upward departure from the

advisory Guidelines range. Ruff’s advisory Guidelines range, based on a total

offense level of 34 and a criminal history category of VI, was 262 to 327 months’

imprisonment. Ruff received a below-Guidelines sentence of 228 months’

imprisonment, consisting of 168 months’ imprisonment for Counts Three, Four

and Six, with a consecutive sentence of 60 months’ imprisonment for Count Five.

Ruff’s sentence was below the Guidelines range and was not the result of an

upward departure from the Guidelines range.

       Ruff asserts we should look at the merits of his claim that the district court

erred by imposing consecutive mandatory sentences under 18 U.S.C. § 924(c) and

18 U.S.C. § 924(e) in contravention of the text of the statute, as we did in another

appeal waiver case, United States v. Segarra, 582 F.3d 1269 (11th Cir. 2009).

We conclude Segarra1 does not apply because Ruff was given a below-Guidelines




       1
         In Segarra, the plea agreement permitted Segarra to appeal if the sentence imposed
exceeded the Guidelines range. Segarra contended he could appeal because his consecutive
sentences under 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. § 924(c) resulted in an overall term of
imprisonment that exceeded the Guidelines range. The Segarra court thereafter permitted his
appeal and looked at the merits of his claim. Segarra, 582 F.3d at 1271-72.

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sentence.2 Ruff’s sentence was not an upward departure from the Guidelines

range, and his sentence does not fit into this exception to the appeal waiver.

                                    II. CONCLUSION

       In conclusion, Ruff knowingly and voluntarily waived his right to appeal.

His sentence is both below the statutory maximum and the advisory Guidelines

range. Accordingly, we dismiss this appeal as barred by Ruff’s appeal waiver.

       DISMISSED.




       2
         Additionally, Ruff’s argument the district court erred by imposing consecutive
mandatory sentences under § 924(c) and § 924(e) is foreclosed by the Supreme Court’s decision
in Abbott v. United States, __ U.S. __, 131 S. Ct. 18, 31 (2010).

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