                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                               NOVEMBER 29, 2005
                                 No. 05-10500                   THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                           ________________________

                       D. C. Docket No. 04-20203-CR-DMM

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                       versus

ANTONE DEWELL BROWN,

                                                             Defendant-Appellant.
                           ________________________

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

                                (November 29, 2005)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      Antone Dewell Brown appeals his conviction and 60-month sentence for

possession with intent to distribute 500 grams or more of cocaine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). After review, we affirm Brown’s

conviction and dismiss his appeal of his sentence.

                           I. BACKGROUND FACTS

      Brown pled guilty pursuant to a written plea agreement. His plea agreement

contained a sentence appeal waiver, providing that Brown waived his right to

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

was imposed, unless the sentence exceeds the maximum permitted by statute or is

the result of an upward departure from the guideline range . . . .” His appeal

waiver also stated that Brown waived claims that the Sentencing Guidelines were

unconstitutional or that facts found by the sentencing court were not admitted by

him or found by the jury, as follows:

      This appeal waiver includes a waiver of the right to appeal the
      sentence on the ground that the sentencing guidelines are in any
      respect unconstitutional, or on the grounds that any fact found by the
      Court at sentencing was not alleged in the indictment, admitted by the
      defendant, found by a jury, or found beyond a reasonable doubt.

      Prior to sentencing, Brown filed a pro se motion to withdraw his guilty plea,

asserting that his counsel was ineffective. At the sentencing hearing, however,

Brown consulted with his counsel and then indicated that he wished to withdraw

his motion to withdraw his plea and proceed with sentencing, specifically stating:

“I withdraw the motion.” After being sentenced, Brown filed a pro se motion for



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reconsideration of his motion to withdraw his guilty plea, asserting that he had

been very nervous during the sentencing hearing and had not intended to withdraw

his motion. The district court summarily denied Brown’s motion for

reconsideration. Brown then filed this appeal.

                                      II. DISCUSSION

       A. Guilty Plea

       On appeal, Brown argues that the district court erred in denying his motion

to withdraw his guilty plea. The district court did not deny Brown’s motion to

withdraw his guilty plea. Rather, after discussion with the court and consultation

with counsel, Brown voluntarily withdrew his motion and opted to proceed with

sentencing. Because the district court did not rule on Brown’s withdrawn motion,

there is no ruling for this Court to review.1 See United States v. Montoya, 782

F.2d 1554, 1556 (11 th Cir. 1986) (holding that, absent exceptional circumstances,

defendant’s withdrawal of motion for mistrial leaves “nothing for this court to

review,” and noting that this court would not “countenance the practice of

‘sandbagging’ the district court” by withdrawing the motion after consultation with

       1
          For the same reason, the district court had no ruling to reconsider. Therefore, the
district court did not err in denying Brown’s motion for reconsideration. Even if Brown’s
motion for reconsideration is construed as a renewed motion to withdraw his guilty plea, the
district court properly denied the post-sentence motion because Rule 11 prohibits a defendant
from withdrawing a guilty plea after a sentencing. See Fed. R. Crim. P. 11(e) (“After the court
imposes sentence, the defendant may not withdraw a plea of guilty . . ., and the plea may be set
aside only on direct appeal or collateral attack.”).

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counsel and then arguing on appeal reversible error for failing to grant the motion);

see also United States v. Olano, 507 U.S. 725, 733-34 (1993) (explaining that in

criminal cases plain error review under Rule 52(b) extends to forfeited errors, in

which the defendant fails to make a timely objection, but not to waived errors, in

which the defendant intentionally relinquishes or abandons a known right); United

States v. Masters, 118 F.3d 1524, 1526 (11 th Cir. 1997) (holding that defendant

waived objection at sentencing to upward departure when he stated that he wanted

to withdraw the objection and proceed with sentencing and refusing to conduct

plain error review).

        B. Sentence

        Brown also argues that at sentencing he was entitled to either a minor role

reduction or safety-valve reduction. In addition he argues that his case should be

remanded for resentencing under United States v. Booker, 543 U.S. ___, 125 S. Ct.

738 (2005). In his written plea agreement, Brown waived his right to appeal his

sentence unless the sentence exceeded the statutory maximum or was the result of

an upward departure. In addition, the sentence appeal waiver expressly precluded

Brown from raising claims that the Sentencing Guidelines were unconstitutional or

that facts found by the sentencing court were not admitted by him or found by a

jury.



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      Appeal waivers are generally enforceable when they are knowingly and

voluntarily entered. See United States v. Buchanan, 131 F.3d 1005, 1008 (11 th Cir.

1997). We review do novo the knowing and voluntary nature of the waiver.

United States v. Bushert, 997 F.2d 1343, 1352 (11 th Cir. 1993). We will enforce a

sentence appeal waiver provision contained in a plea agreement if the government

demonstrates either that (1) the district court questioned the defendant about the

waiver during the plea colloquy, or (2) “it is manifestly clear from the record that

the defendant otherwise understood the full significance of the waiver.” Id. at

1351. In addition, we have held that “the right to appeal a sentence based on

Apprendi/Booker grounds can be waived in a plea agreement,” and “[b]road

waiver language covers those grounds of appeal.” United States v. Rubbo, 396

F.3d 1330, 1335 (11th Cir. 2005), cert. denied, 73 U.S.L.W. 3734 (U.S. Oct 11,

2005) (No. 04-1663).

      The record reveals that the district court specifically questioned Brown

about the sentence appeal waiver during the plea colloquy. Brown acknowledged

that he understood that he was relinquishing his right to appeal his sentence except

under limited circumstances. Brown also acknowledged that he had discussed with

his attorney the then-recent Supreme Court decision in Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531 (2004), and that he understood he was giving up his right



                                           5
to challenge his sentence based on a Blakely argument. Accordingly, Brown’s

sentence appeal waiver is enforceable and valid. Because Brown knowingly and

voluntarily waived his right to appeal his sentence on the grounds asserted in his

brief, we dismiss his appeal of his sentence.

      Accordingly, we affirm Brown’s conviction and dismiss the appeal of his

sentence.

      AFFIRMED IN PART, DISMISSED IN PART.




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