              Case: 16-10995     Date Filed: 01/18/2017   Page: 1 of 3


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-10995
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:15-cr-20675-CMA-1



UNITED STATES OF AMERICA,
                                                           Plaintiff-Appellee,

                                       versus

CUTHBERT LEW NICHOLAS,

                                                           Defendant-Appellant.

                           ________________________

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

                                 (January 18, 2017)

Before TJOFLAT, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Culbert Nicholas appeals his 120-month sentence, imposed after pleading

guilty to one count of possession with the intent to distribute controlled substances,
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in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)–(D), one count of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count

of possession of a firearm in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A)(i). On appeal, Nicholas argues that the district court

erred by designating him as a career offender under the Guidelines. He does not

argue that his sentence appeal waiver should not be enforced. Upon review of the

record and consideration of the parties’ briefs, we affirm.

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

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

be enforced if made knowingly and voluntarily. United States v. Bushert, 997 F.2d

1343, 1351 (11th Cir. 1993). To establish that the waiver was made knowingly

and voluntarily, the government must show 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.

      The record shows that Nicholas’s sentence appeal waiver was made

knowingly and voluntarily. During the plea colloquy, the court specifically

questioned Nicholas about the appeal waiver, and Nicholas indicated that he

waived his right to appeal knowingly and voluntarily. See Bushert, 997 F.2d at

1351. He also indicated that he was not forced or coerced into agreeing to the


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terms of the plea deal. Therefore, his appeal waiver is valid. See id. Moreover,

the only exceptions to the waiver are not applicable, because there was no upward

departure or variance by the district court and the sentence was not above any of

the statutory maximums. In fact, Nicholas’s sentence of 120 months was below

the guideline range of 262 to 327 months and equal to the lowest statutory

maximum of 120 months. Therefore, his appeal is barred by his sentence appeal

waiver.

      Therefore, his appeal is barred by his sentence appeal waiver. Accordingly,

we affirm.

      AFFIRMED.




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