                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                    FILED
                           ________________________
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 04-15919                    November 2, 2005
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                CLERK


                     D. C. Docket No. 04-00042-CR-HLM-4-1


UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

MIGUEL PEREZ HERNANDEZ,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                (November 2, 2005)

Before TJOFLAT, DUBINA and RONEY, Circuit Judges.

PER CURIAM:

      Miguel Perez Hernandez appeals his convictions and 181-month sentence

for possession with intent to distribute at least 500 grams of a mixture or substance
containing a detectable amount of methamphetamine, 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(viii) (count 1), and possession of a firearm in connection with a drug

trafficking crime, 18 U.S.C. § 924(c)(1) (count 2), based on his negotiated plea

agreement with the government. T. Stanley Sunderland, appointed counsel for

Hernandez, has moved to withdraw from further representation of Hernandez and

has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,

18 L. Ed.2d 493 (1967). Because independent examination of the record reveals

no arguable issues of merit, counsel’s motion to withdraw is granted. Hernandez’s

convictions and sentences are affirmed.

      Hernandez pro se opposes attorney Sunderland’s motion to withdraw,

contends his appeal is meritorious, and raises two of his own arguments on appeal.

Specifically, Hernandez contends: (1) the government breached the plea

agreement when it failed to “seek a downward departure” for “substantial

assistance” that he believes he had provided the government; and (2) that there was

an inadequate factual basis for his guilty plea as to the § 924(c) possession of a

firearm count, as required by Federal Rule of Criminal Procedure 11.

      Hernandez’s plea agreement contained a limited appeal waiver provision,

which attorney Sunderland asserts “foreclosed the majority of possible avenues for

appeal.” The provision states the following in relevant part:

                    To the maximum extent permitted by federal law,
             the defendant voluntarily and expressly waives the right


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             to appeal sentence and the right to collaterally attack his
             sentence in any post-conviction proceeding on any
             ground, except that the defendant may file a direct appeal
             of an upward departure from the otherwise applicable
             sentencing guideline range.

      “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.” United States v. Benitez-Zapata, 131 F.3d

1444, 1446 (11th Cir. 1997).

      Here, the district court specifically questioned Hernandez about his sentence

appeal waiver during the plea colloquy, thoroughly explained the limited

circumstances in which he could appeal, and confirmed that Hernandez wanted to

proceed with the waiver. During the plea colloquy, when the district court asked if

he wanted to give up his right to appeal except for the limited circumstance of an

upward departure, Hernandez stated, “That’s okay, yes.” Hernandez’s sentence

appeal waiver is valid and enforceable, and it precludes from appellate review any

potential sentencing issues such as the district court’s application of the Sentencing

Guidelines in a mandatory fashion or the court’s refusal to depart downward.

See Benitez-Zapata, 131 F.3d at 1446.

      Hernandez argues in his motion in opposition to his counsel’s Anders’ brief

that the government breached the plea agreement when it failed to seek a



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downward departure or file a motion for reduction in sentence based on

Hernandez’s alleged “substantial assistance.” Hernandez contends that the

government was bound to make such a recommendation and that he is entitled to

“specific performance” of the plea agreement.

      There is no arguable merit as to this issue. Hernandez’s plea agreement

clearly states that a decision whether to file a motion for downward departure

pursuant to U.S.S.G. § 5K1.1 or Fed. R. Crim. P. 35(b) is within the discretion of

the government. The plea agreement entered into between Hernandez and the

government states, “In either case, the defendant understands that the

determination as to whether [Hernandez] has provided ‘substantial assistance’ rests

solely with the Government.” It is clear from a plain reading of the plea agreement

the government never promised to do so. See, e.g., United States v. Forney,

9 F.3d 1492, 1499-1501 (11th Cir. 1993) (noting that the government’s refusal to

file a § 5K1.1 motion did not breach a plea agreement that stated only that the

government would consider whether the defendant’s aid qualified as substantial

assistance). The government did not breach the plea agreement and Hernandez is

not entitled to any specific performance. Accordingly, counsel correctly asserts

that there are no issues of arguable merit regarding Hernandez’s sentence.

      Hernandez asserts that there was an inadequate factual basis to support his

guilty plea because, he contends, (1) he was not in possession of any firearms at



                                          4
the time of his arrest, and (2) there were no drugs present in his house when the

firearms were seized.

      The district court determined that there was a factual basis to support a

conviction for possession of a firearm in furtherance of a drug trafficking crime.

The government proffered, and Hernandez even agreed at sentencing, that

Hernandez possessed two firearms – a semi-automatic pistol under a mattress and a

12-gauge shotgun under a window – in the bedroom where he sold

methamphetamine to the confidential informant immediately preceding his arrest

during the transportation of those drugs. It is clear that these firearms were in close

proximity to the drug transaction and were accessible to Hernandez. See Timmons,

283 F.3d at 1253. Given the nexus between the firearms and the drug trafficking, it

was not an abuse of discretion for the district court to determine that the firearm

helped, furthered, promoted, or advanced Hernandez’s drug trafficking, and,

therefore, that there was a factual basis for Hernandez’s guilty plea on this count.

      Because no issues of arguable merit have been identified by counsel or

Hernandez, or through this Court’s independent review of the record, counsel’s

motion to withdraw is GRANTED. Hernandez’s convictions and sentences are

AFFIRMED.

      COUNSEL’S MOTION TO WITHDRAW IS GRANTED; AND THE

CONVICTIONS AND SENTENCES AFFIRMED.



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