                                                   [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                      Aug. 21, 2009
                            No. 09-10317            THOMAS K. KAHN
                        Non-Argument Calendar           CLERK
                      ________________________

                D. C. Docket No. 08-00353-CR-T-26-TBM

UNITED STATES OF AMERICA,



                                                        Plaintiff-Appellee,

                                 versus

INES HERNANDEZ-ZALDIVAR,
a.k.a. Miguel Angel Hernandez,


                                                   Defendant-Appellant.
                           ________________________

                                 No. 09-10318
                             Non-Argument Calendar
                           ________________________

                    D. C. Docket No. 08-00368-CR-T-26-MAP

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

INES HERNANDEZ-ZALDIVAR,

                                                              Defendant-Appellant.

                           ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                 (August 21, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, Ines Hernandez-Zaldivar appeals his overall

sentence of 84 months’ imprisonment, 60 months of which were imposed for the

instant unlawful re-entry offense, and 24 months of which were imposed for

violating his supervised release for an unrelated unlawful re-entry offense. For the

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reasons set forth below, we affirm.

                                           I.

      In August 2008, a federal grand jury in the Middle District of Florida

returned an indictment against Hernandez-Zaldivar, charging him with, inter alia,

being an alien found in the United States without permission after having been

previously deported on five different occasions and having been previously

convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2).

      Hernandez-Zaldivar pled guilty to the above charge, pursuant to a written

plea agreement. The factual basis contained in the agreement provided that

Hernandez-Zaldivar was a native and citizen of Mexico who, after being found

during a street gang suppression operation in the Middle District of Florida in

August 2008, admitted that he was an illegal alien, had been previously deported

from the United States at least five times, and had been previously convicted of

possession of a firearm, which was an aggravated felony. As a part of the

agreement, and in exchange for Hernandez-Zaldivar’s participation in the Middle

District’s Fast Track Early Disposition Program, he “agree[d] to waive the right to

directly appeal [his] . . . sentence . . . .” This waiver provision did not contain any

exceptions.

      In advising Hernandez-Zaldivar of his rights at the plea hearing, the district



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court engaged in the following colloquy regarding the sentence appeal waiver:

      COURT:                     And then you also agree not to appeal your
                                 sentence, that is, you waive your right to a
                                 direct appeal . . . .

                                 Under this waiver provision, you’re giving
                                 up that right. Let me give you an example.
                                 Let’s assume I made a mistake in calculating
                                 your guideline range, and you know I was
                                 wrong. Under this waiver provision, you
                                 can’t ask the Eleventh Circuit Court of
                                 Appeals to correct my mistake.

                                 You understand that?

      THE DEFENDANT:             Yes.

      COURT:                     . . . . Now, are you entering into this entire
                                 plea agreement, including the waiver of
                                 appeal provision, freely, voluntarily,
                                 knowingly and intelligently because it’s
                                 what you want to do and for no other
                                 reason?

      THE DEFENDANT:             No, everything is fine.

      COURT:                     No, is that why you’re doing it; freely,
                                 voluntarily, knowingly and intelligently?

      THE DEFENDANT:             Yes.


After Hernandez-Zaldivar admitted to the factual basis contained in the plea

agreement, the district court accepted his guilty plea.

      Before sentencing, the probation officer filed a petition with the court,

                                           4
alleging that Hernandez-Zaldivar’s unlawful re-entry offense constituted a

violation of the terms of his supervised release imposed in connection with a prior

conviction in the District of Arizona.1 Specifically, the probation officer alleged

that, on September 27, 2005, Hernandez-Zaldivar was convicted in Arizona of

unlawful re-entry after deportation, for which he was sentenced to 24 months’

imprisonment and 24 months of supervised release. He began serving the period

of supervised release on April 30, 2007, and the conditions of his supervision

prohibited him from re-entering the country without authorization. Thus, because

the instant offense violated that condition, the probation officer recommended that

the district court revoke Hernandez-Zaldivar’s term of supervised release.

       The court held a joint sentencing/revocation hearing, addressing both the

sentence to be imposed for Hernandez-Zaldivar’s unlawful re-entry offense and the

alleged violation of his supervised release in the Arizona case. The court first

found, and Hernandez-Zaldivar agreed, that because he had pled guilty to the

instant offense, there was no dispute that he had violated the terms and conditions

of his supervision . The court found that the Chapter 7 guideline range for this

violation was 12 to 18 months’ imprisonment and that it carried a statutory

maximum penalty of 24 months’ imprisonment.


       1
          The district judge who presided over the Arizona case transferred jurisdiction of the
supervised release proceedings to the Middle District of Florida.

                                              5
      With respect to the unlawful re-entry offense, the government moved for a

four-level downward departure based on Hernandez-Zaldivar’s participation in the

fast-track program. The court granted the motion “with great reluctance,” giving

Hernandez-Zaldivar a guideline range of 21 to 27 months’ imprisonment. After

defense counsel acknowledged that the court correctly calculated the guideline

range, he requested that the court impose a sentence at the high-end of the

guideline range in light of the fact that Hernandez-Zaldivar had previously been

deported on five different occasions. With respect to the sentence to be imposed

upon revocation of supervised release, defense counsel similarly requested that the

court impose a sentence at the high-end of the Chapter Seven guideline range.

      Hernandez-Zaldivar then personally apologized to the United States, but the

court expressed doubts about his sincerity. The court explained: “He obviously

hasn’t learned his lesson. He’s been deported several times, he’s on supervised

release for the same type of offense and he comes back.” The government then

reviewed Hernandez-Zaldivar’s criminal record and requested that the court

impose a sentence at the high end of the guideline range. With respect to the

sentence to be imposed for violating his supervised release, the government

requested that the court impose the statutory maximum sentence of 24 months’

imprisonment.



                                          6
      After confirming that the supervised release violation was not encompassed

by the plea agreement, the court imposed its sentence as follows:

      All right. Well, he’s already been given a benefit several times by
      other Federal Judges in other districts. He’s been given another
      benefit by the Government in allowing him to participate in the fast
      track program. I’ve honored the plea agreement, but as we all know,
      the guidelines are now advisory in nature. And in addition to
      consulting the advisory guidelines, it’s also my obligation to consult
      and consider the statutory factors embraced in Title 18 of the United
      States Code, Section 3553(a)1 through 7.

      I’m now directed to consider the nature and circumstances of the
      offense and the history and characteristics of the Defendant. The
      nature and circumstances of this offense is almost identical to the
      nature and circumstance for which he’s now on supervised release.
      And his history and characteristics reveal he’s been deported several
      times, he keeps coming back to this country illegally.

      I’m also directed to insure that any sentence I impose addresses the
      issues of; it must reflect the seriousness of the offense, it must
      promote respect for the law, and it must provide just punishment for
      the offense. And I also must afford adequate deterrence to criminal
      conduct and also must protect the citizens of this community from
      further crimes of the Defendant.

      In my view, taking all those factors into consideration, especially his
      history and characteristics, and especially to deter him from further
      criminal conduct, a sentence within the advisory guidelines range is
      simply not appropriate, it would not be reasonable and would not be
      sufficient to comply with the statutory purposes of sentencing. He
      wants to stay in the United States, I’m going to let him do that for an
      extended period of time, but in a Federal facility.

      In my view, with regard to the new substantive offense, a sentence of
      five years or 60 months is reasonable and that is to be followed by a
      two-year term with regard to this other [supervised release] case to run

                                          7
      consecutive for a total term of incarceration of 84 months or seven
      years.

In subsequently addressing the supervised release violation in particular, the court

revoked Hernandez-Zaldivar’s supervised release, re-imposed the consecutive

24-month sentence, and reiterated that, in arriving at this sentence, it had

“considered the statutory factors . . . , and the advisory guidelines and policy

statements issued by the United States Sentencing Commission.”

      The district court memorialized its two sentences by entering a judgment of

conviction for the substantive unlawful re-entry offense and a judgment of

revocation for the supervised release violation. Hernandez-Zaldivar filed a notice

of appeal from each judgment, and we consolidated the appeals.

                                          II.

      On appeal, the government correctly separates the court’s overall 84-month

sentence into its two components – the 60-month sentence for the substantive

unlawful re-entry offense and the consecutive 24-month sentence for the

supervised release violation – and argues that, pursuant to the sentence appeal

waiver, Hernandez-Zaldivar has waived his right to challenge the 60-month

sentence. It is true that the sentence appeal waiver in that case generally precluded

Hernandez-Zaldivar, without exception, from challenging the court’s sentence on

direct appeal.

                                           8
      However, in order for such a sentence appeal waiver to be effective, it must

be knowingly and voluntarily entered. United States v. Bushert, 997 F.2d 1343,

1351 (11th Cir. 1993). “[W]hether a defendant effectively – that is knowingly and

voluntarily – waived his right to appeal his sentence is a question of law that this

court reviews de novo.” Id. at 1352. In this respect, a sentence appeal 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. Grinard-Henry, 399 F.3d 1294, 1296

(11th Cir. 2005) (quotation omitted).

      In this case, the district court specifically questioned and informed

Hernandez-Zaldivar about the sentence appeal waiver at the plea hearing, and the

record reveals that he understood its significance. Thus, we will enforce the

waiver. Moreover, the broad language of the sentence appeal waiver in this case

admits of no exceptions and therefore encompasses Hernandez-Zaldivar’s

reasonableness challenge. Cf. United States v. Rubbo, 396 F.3d 1330, 1335 (11th

Cir. 2005) (“[T]he right to appeal a sentence based on Apprendi/Booker grounds

can be waived in a plea agreement. Broad waiver language covers those grounds

of appeal.”). Accordingly, we decline to review the district court’s 60-month



                                           9
sentence for reasonableness.

                                               III.

       On the other hand, because the sentence appeal waiver does not cover the

supervised release violation, we do address Hernandez-Zaldivar’s reasonableness

challenge as it relates to the 24-month sentence.2 We review a sentence imposed

upon revocation of supervised release for reasonableness. United States v.

Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). The Supreme Court has

clarified that this Court reviews a sentence for reasonableness under an abuse of

discretion standard. Gall v. United States, 552 U.S. 38, __, 128 S.Ct. 586, 591,

169 L.Ed.2d 445 (2007). Similarly, we review for abuse of discretion a district

court’s decision to exceed the sentencing range in Chapter Seven of the Sentencing

Guidelines. United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006). The party

challenging the sentence bears the burden of establishing that the sentence was

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

       “Under 18 U.S.C. § 3583(e), a district court may, upon finding by a

preponderance of the evidence that a defendant has violated a condition of

supervised release, revoke the term of supervised release and impose a term of

imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”


       2
          Hernandez-Zaldivar does not dispute the court’s authority to revoke his supervised release
or its determination that his Chapter 7 guideline range was 12 to 18 months’ imprisonment.

                                                10
Sweeting, 437 F.3d at 1107; see 18 U.S.C. § 3583(e)(3). Under § 3583(e), the

relevant § 3553(a) factors that the court must consider are: 1) the nature and

circumstances of the offense and the history and characteristics of the defendant;

(2) the need to afford adequate deterrence; (3) the need to protect the public; (4)

the need to provide the defendant with educational or vocational training or

medical care; (5) the Sentencing Guidelines range and pertinent policy statements

of the Sentencing Commission; (6) the need to avoid unwanted sentencing

disparities; and (7) the need to provide restitution to victims. See 18 U.S.C.

§ 3583(e), cross referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7). In

Chapter Seven of the Guidelines, the Sentencing Commission promulgated

non-binding policy statements governing the violation of supervised release. See

United States v. Hofierka, 83 F.3d 357, 361 (11th Cir. 1996) (holding that the

policy statements in Chapter Seven are non-binding).

      In imposing the 24-month sentence, the district court expressly stated that it

had considered the statutory factors, the advisory guidelines, and the Sentencing

Commission’s policy statements. Furthermore, the court understandably

emphasized the fact that Hernandez-Zaldivar had not “learned his lesson,” as he

continued to re-enter the country unlawfully, having been previously deported on

five separate occasions since 2001. In this respect, the court explicitly tied this



                                           11
point to two of the statutory factors, namely, the “history and characteristics” of

Hernandez-Zaldivar, § 3553(a)(1), and the need to deter him from committing

further criminal conduct, § 3553(a)(2)(B).

      The only argument advanced by Hernandez-Zaldivar on appeal to support

his assertion that his sentence was unreasonable is that, despite his history of

unlawfully re-entering the country, he has not committed any additional criminal

conduct. This contention, however, significantly understates the severity of

Hernandez-Zaldivar’s criminal history, as unlawfully re-entering the country

following deportation is itself a criminal offense, and, contrary to

Hernandez-Zaldivar’s assertion, repeatedly committing such an offense does

support an upward variance. In addition, his argument is further undercut by the

fact that, in June 2003, he was convicted of an aggravated felony, namely,

possession of a firearm. As this is the only argument advanced by

Hernandez-Zaldivar on appeal, we conclude that he has not met his burden of

showing that the court’s 24-month sentence was substantively unreasonable.

Accordingly, we affirm.

      AFFIRMED.




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