                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________              FILED
                                                     U.S. COURT OF APPEALS
                        No. 10-12712 and No. 10-15047 ELEVENTH CIRCUIT
                           Non-Argument Calendar       SEPTEMBER 6, 2011
                         ________________________           JOHN LEY
                                                             CLERK
                    D.C. Docket No. 2:09-cr-14059-KMM-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                     versus

JAMES T. BYRNE,

                                                           Defendant-Appellant.

                         ________________________

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

                              (September 6, 2011)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      James Byrne appeals his conviction and sentence for producing child

pornography. 18 U.S.C. § 2251(a). Byrne challenges the denial of his motion to
withdraw his guilty plea and the enhancement of his sentence. Although this

Court invited Byrne and the United States to address whether the district court had

jurisdiction to impose restitution, the parties have not discussed the issue, and

neither will we. We affirm.

      The district court did not abuse its discretion by denying Byrne’s motion to

withdraw his guilty plea. Byrne’s plea agreement and the plea colloquy establish

that Byrne was aided by counsel in reaching a decision to plead guilty, he

understood his constitutional rights, and he knowingly and voluntarily waived

those rights. Byrne, who served more than 20 years as a deputy chief clerk in a

New York court, admitted during the plea colloquy that the factual basis appended

to his plea agreement “accurately set[] forth the facts” of his crime. Byrne argues

that the factual basis was revised before the plea colloquy and “he was unclear as

to exactly what he had signed,” but the parties revised only one paragraph about

two “additional images depicting [the victim] engaged in sexual activity,” which

left undisturbed Byrne’s admissions about “engaging in sexual activity with [the

victim], . . . for the purpose of producing visual images of that sexual activity” and

producing “over 300 images of child pornography involving the minor child,”

including two images on which Byrne’s “face [was] visible as he perform[ed] oral

sex on [the victim].” Byrne complains about the hurried pace of the plea colloquy,

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but the magistrate judge instructed Byrne to stop the proceedings any time that

there was “something that [he] [did] not understand” or if he “need[ed] to . . .

consult with [his] attorney.” Byrne failed to provide any “fair and just reason for

requesting” to withdraw his guilty plea. Fed. R. Crim. P. 11(d)(2)(B).

      Byrne argues that the district court incorrectly applied three enhancements

to his sentence, but these arguments are barred by the appeal waiver in Byrne’s

plea agreement. The plea agreement provided that Byrne waived the right to

appeal his sentence “unless the sentence exceed[ed] the maximum permitted by

statute or [was] the result of an upward departure from the guideline range that the

[district] [c]ourt establishe[d] at sentencing,” and Byrne twice acknowledged those

limitations during the plea colloquy. Byrne knowingly and voluntarily waived the

right to appeal his sentence. See United States v. Weaver, 275 F.3d 1320, 1333

(11th Cir. 2001).

      We AFFIRM the denial of Byrne’s motion to withdraw his guilty plea.




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