                Case: 14-11843   Date Filed: 06/15/2015   Page: 1 of 8


                                                              [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-11843
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 6:13-cr-00259-ACC-KRS-2


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

HARRY CANCEL-VELEZ,
a.k.a. Harry,

                                                              Defendant-Appellant.
                           ________________________

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

                                  (June 15, 2015)

Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Appellant Harry Cancel-Velez pled guilty to conspiracy to commit access-

device fraud.    In exchange for his plea, the government agreed to recommend a
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three-level downward adjustment for acceptance of responsibility under the United

States Sentencing Guidelines and a sentence within the calculated sentencing

guideline range. The government also agreed to consider whether Cancel-Velez’s

cooperation qualified as “substantial assistance” warranting a downward departure

from the applicable guideline range. In this regard, the plea agreement states,

              [T]he defendant understands that the determination as to
              whether “substantial assistance” has been provided or
              what type of motion related thereto will be filed, in any,
              rests solely with the United States Attorney for the
              Middle District of Florida, and the defendant agrees that
              the defendant cannot and will not challenge that
              determination, whether by appeal, collateral attack, or
              otherwise.

      The plea agreement also contains a limited waiver of appeal, which provides

as follows:

              6. Defendant’s Waiver of Right to Appeal the Sentence

                 The defendant agrees that this Court has jurisdiction
              and authority to impose any sentence up to the statutory
              maximum and expressly waives the right to appeal
              defendant’s sentence on any ground, including the
              ground that the Court erred in determining the applicable
              guidelines range pursuant to the United States Sentencing
              Guidelines, except (a) the ground that the sentence
              exceeds the defendant’s applicable guidelines range as
              determined by the Court pursuant to the United States
              Sentencing Guidelines; (b) the ground that the sentence
              exceeds the statutory maximum penalty; or (c) the
              ground that the sentence violates the Eighth Amendment
              to the Constitution; provided, however, that if the
              government exercises its right to appeal the sentence
              imposed, as authorized by 18 U.S.C. § 3742(b), then the
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             defendant is released from his waiver and may appeal the
             sentence as authorized by 18 U.S.C. § 3742(a).

       In the plea agreement, Cancel-Velez acknowledged that he was entering into

the agreement freely and voluntarily, that he understood the nature of the offense

to which he was pleading guilty and its penalties, and that he was satisfied with his

attorney’s representation. Cancel-Velez and his attorney also certified that they

had read the plea agreement in its entirety and that Cancel-Velez fully understood

its terms.

       During the Rule 11, Fed. R. Crim. P., plea colloquy, the district-court judge

reviewed pertinent provisions of the plea agreement with Cancel-Velez, including,

notably, his decision to waive his right to appeal his sentence except in limited

circumstances. Cancel-Velez, who had a copy of the plea agreement in front of

him, confirmed that he had discussed the appeal waiver provision with his attorney

and that he understood that he was “waiving [his] right to appeal [his] sentence.”

The judge did not specifically describe the exceptions in the appeal waiver

provision, but explained that “by this waiver you give up your right to appeal or

contest your sentence on any ground except for those that are specifically

mentioned here [in the provision].” Cancel-Velez stated that he did not have any

questions about the waiver and that he made the waiver knowingly and voluntarily.

At the conclusion of the hearing, the district court judge accepted Cancel-Velez’s

guilty plea and found that it was knowingly, voluntarily, and intelligently made.
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      At Cancel-Velez’s sentencing, the district court determined that his

guideline range was 37 to 46 months’ imprisonment. The government moved for a

two-level downward departure based on Cancel-Velez’s substantial assistance.

Cancel-Velez’s attorney requested that the court “stretch [the substantial assistance

departure] a little” due to Cancel-Velez’s “significant” cooperation.         Cancel-

Velez’s attorney highlighted that Cancel-Velez provided valuable information to

the Secret Service, testified before a grand jury, and testified for the government in

the sentencing hearings of other defendants.          Based on the extent of his

cooperation, Cancel-Velez was “hoping for a couple more levels.” The court

granted the two-level downward departure and Cancel-Velez’s guideline range

became 30 to 37 months’ imprisonment. After considering the sentencing factors

in 18 U.S.C. § 3553(a), the court imposed a sentence of imprisonment of 12

months and one day.

      On appeal, Cancel-Velez argues, with respect to the appeal waiver, that due

process requires that he be released from the waiver and that he fits within an

exception to the waiver.       On the merits, Cancel-Velez contends that the

government did not fulfill its obligations under the plea agreement because it

should have moved for a greater departure based on Cancel-Velez’s substantial

assistance.




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      We review the validity of a sentence appeal waiver de novo and will

continue to enforce the waiver if it was made knowingly and voluntarily. United

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008); United States v. Bushert,

997 F.2d 1343, 1350-51 (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. Johnson, 541 F.3d at 1066; Bushert, 997 F.2d at

1351. This Court has noted that “[i]n extreme circumstances—for instance, if the

district court had sentenced [the defendant] to a public flogging—due process may

require that an appeal be heard despite a previous waiver.” United States v. Howle,

166 F.3d 1166, 1169 n.5 (11th Cir. 1999).

      Here, we find that the appeal waiver was knowingly and voluntarily made.

The district-court judge specifically questioned Cancel-Velez about the appeal

waiver. Although the judge did not list each exception, Cancel-Velez had a copy

of the plea agreement in front of him at the time, and the judge referred to the

provision and the limited grounds for appeal listed there. Cancel-Velez clearly

confirmed that he understood the appeal waiver, had discussed it with his attorney,

and did not have any questions about the provision. The representations Cancel-

Velez made in the plea agreement itself further show that Cancel-Velez understood


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the full significance of the waiver. In sum, the circumstances show that Cancel-

Velez was specifically questioned about the waiver and understood its full

significance. See Bushert, 997 F.2d at 1351. There is no “extreme circumstance”

here requiring that the appeal be heard despite the waiver. See Howle, 166 F.3d at

1169 n.5.    Indeed, the district court sentenced Cancel-Velez well below the

guideline range. Consequently, the waiver is enforceable.

      Moreover, it is not entirely clear what challenge Cancel-Velez presents on

the merits of his appeal. While he contends that an exception to the waiver permits

him to appeal his sentence, he identifies no error committed by the district court in

sentencing him. Rather, his arguments relate only to the government’s obligations

under the plea agreement, to which the district court was not a party, but he does

not state what relief he seeks from this Court—such as vacating his guilty plea or

his sentence. In any case, assuming that Cancel-Velez attempts to challenge the

district court’s sentence or the extent of the reduction granted by the court, no

exception to the waiver applies to permit his appeal. We therefore dismiss this

portion of his appeal.

      To the extent that Cancel-Velez contends that the government breached the

plea agreement at sentencing, his challenge is cognizable despite the sentence

appeal waiver. United States v. Copeland, 381 F.3d 1101, 1105-06 (11th Cir.

2004) (reviewing whether the government breached a plea agreement


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notwithstanding a sentence appeal waiver).         But cognizable does not equal

meritorious.

      “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). Under U.S.S.G. § 5K1.1, the

district court may depart from the guidelines “[u]pon motion of the government

stating that the defendant has provided substantial assistance in the investigation or

prosecution of another person who has committed an offense.” U.S.S.G. § 5K1.1.

      Here, the plea agreement expressly reserves to the government “the

determination as to whether ‘substantial assistance’ has been provided or what type

of motion related thereto will be filed, if any.” See generally United States v.

Forney, 9 F.3d 1492, 1500-03 & n.5 (11th Cir. 1993) (explaining the limited

circumstances in which a defendant can challenge a prosecutor’s discretion with

respect to filing a § 5K1.1 motion); see also United States v. Nealy, 232 F.3d 825,

831 (11th Cir. 2000). Cancel-Velez further agreed that he could not and would not

“challenge that determination, whether by appeal, collateral attack, or otherwise.”

Because Cancel-Velez has not alleged any unconstitutional motive on the part of

the government, we could not review his challenge even if the government had

refused to move for a sentence reduction altogether. See Forney, 9 F.3d at 1502

n.5. The government’s decision as to the extent of the reduction sought is similarly


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discretionary under the plea agreement. Consequently, the government did not

violate the plea agreement, and we affirm as to this issue.

      DISMISSED IN PART; AFFIRMED IN PART.




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