                                                                     [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                          FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                     U.S.
                            ________________________   ELEVENTH CIRCUIT
                                                                      NOVEMBER 30, 2005
                                    No. 04-13980                       THOMAS K. KAHN
                              ________________________                     CLERK


                      D.C. Docket No. 04-00092-CR-T-27-TBM

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

       versus

TODDRICK D. WILLIAMS,
a.k.a. Todd Deshauwn Williams,

                                                                  Defendant-Appellant.

                            __________________________

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

                                    (November 30, 3005)

Before BIRCH and WILSON, Circuit Judges, and ROYAL*, District Judge.

PER CURIAM:


       *
       Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
      Toddrick D. Williams appeals his 188-month sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

Williams entered into a written Plea Agreement in which he agreed to plead guilty

to a single violation of § 922(g)(1) and the government agreed to dismiss two

other charges and recommend a 3-level sentencing reduction for acceptance of

responsibility and timely entry of a guilty plea. The Plea Agreement indicated that

Williams was subject to a maximum prison sentence of 10 years and contained an

appeal waiver, which a magistrate thoroughly explained during a Fed.R.Civ.P. 11

hearing.

      After Williams entered his guilty plea, the probation officer discovered a

past conviction which the government had overlooked and which triggered an

“armed career offender” enhancement under 18 U.S.C. § 924(e). Because of this

enhancement, Williams was subject to a statutory minimum sentence of 15 years

imprisonment. At sentencing, the § 924(e) enhancement was brought to the

district court’s attention and the district court continued sentencing for

approximately 2 weeks to allow Williams to decide whether to withdraw his guilty

plea. Williams ultimately chose to stand by his guilty plea, and the district court

conducted a supplemental plea colloquy during which Williams admitted to the

predicate convictions which triggered the § 924(e) enhancement and the district

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court explained the minimum and maximum penalties which § 924(e) carries.

However, the district court did not mention the appeal waiver during the

supplemental plea colloquy, nor did it indicate whether Williams could appeal a

sentence which exceeded the 10-year maximum for an ordinary violation of

§ 922(g)(1). The district court ultimately sentenced Williams to 188 months

imprisonment.

      Williams raises three assignments of error on appeal. First, he argues that

the district court erred by imposing a § 924(e) enhancement when the facts

underlying this enhancement (his prior convictions) were not alleged in the

indictment. Second, Williams argues for the first time on appeal that his due

process rights were violated because he did not receive any notice of the

possibility of the § 924(e) enhancement until he received the PSI. Third, Williams

argues that, because he was told that he faced a maximum sentence of 10 years

both when he signed the Plea Agreement and during the initial plea colloquy, the

district court abused its discretion by denying his motion for a downward

departure.

      The government contends that the instant appeal is precluded by the appeal

waiver in the Plea Agreement.




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                              I. The Appeal Waiver

      Whether an appeal waiver is enforceable is a question of law that we review

de novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993).

Waivers of the right to appeal one’s sentence are enforceable only if they are

knowing and voluntary. Id. at 1350. “[I]n most circumstances, for a sentence

appeal waiver to be knowing and voluntary, the district court must have

specifically discussed the sentence appeal waiver with the defendant during the

Rule 11 hearing.” Id. at 1351. However, sentence appeal waivers are also

enforceable when “it is manifestly clear from the record that the defendant

otherwise understood the full significance of the waiver.” Id. Furthermore, we

have “reject[ed] the view . . . that an examination of the text of the plea agreement

is sufficient to find the waiver knowing and voluntary.” Id. at 1352. When a

sentence appeal waiver is not voluntary, we will disregard the waiver and proceed

to the merits of the defendant’s appeal. Id. at 1353. In addition, we have also

expressly held that “the 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.” United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.

2005).




                                          4
      In the instant case, the magistrate judge thoroughly examined Williams to

ensure that his guilty plea was knowing and voluntary and also explained the

terms of the sentence appeal waiver to Williams. However, because Williams was

misinformed about the maximum sentence he faced during this hearing, he did not

make the sort of “knowing” waiver of his appeal rights required by Bushert.

While Williams chose to stand by his guilty plea even after he learned about the

§ 924(e) enhancement and the increased minimum and maximum sentences, the

district court never mentioned the appeal waiver during the second plea colloquy.

Thus, Williams was never advised on the record that he was waiving the right to

appeal a sentence which exceeded the 10-year maximum permitted by § 924(a)(2)

but was consistent with § 924(e). Accordingly, we conclude that the appeal

waiver is ineffective and proceed to the merits of Williams’s appeal.

      II. Sentence Enhancement Based upon Judicial Factual Findings

      When the defendant objected below to enhancements to his sentence based

upon judicial factual findings, these enhancements are reviewed de novo. United

States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).

      Defendants who violate § 922(g) are ordinarily subject to a maximum

sentence of 10 years imprisonment. See 18 U.S.C. § 924(a)(2). However, when a

defendant who violates § 922(g) has previously been convicted of three or more

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offenses which are drug trafficking crimes or crimes of violence, the defendant is

subject to a minimum prison sentence of 15 years and a maximum sentence of life.

See 18 U.S.C. § 924(e). We have held that § 924(e) is merely a sentence

enhancement provision, and does not create a separate offense. United States v.

Ruo, 943 F.2d 1274, 1275 (11th Cir. 1991). In addition, § 924(e) applies

automatically, whether or not the government seeks such an enhancement. United

States v. Cobia, 41 F.3d 1473, 1475 (11th Cir. 1995). A series of recent Supreme

Court decisions is relevant to the procedural requirements for imposing a § 924(e)

enhancement.

      In 1998, the Supreme Court held that, in order to seek an enhanced penalty

based on an earlier conviction, the government need not charge the fact of the

earlier conviction in the indictment or treat this fact as an element of a crime.

Almendarez-Torres v, United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 1222,

140 L.Ed.2d 350 (1998). Subsequent caselaw has not repudiated this principle. In

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63,

147 L.Ed.2d 435 (2000), the Supreme Court explicitly exempted judicial findings

regarding prior convictions from its declaration that a defendant’s sentence may

not be increased beyond the statutory maximum on the basis of judicial factual

findings. See also United States v. Guadamuz-Solis, 232 F.3d 1363, 1363

                                           6
(11th Cir. 2000) (stating, in light of Apprendi, that “Almendarez-Torres remains

the law until the Supreme Court determines that Almendarez-Torres is not

controlling precedent”).

      Nor did Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004), vitiate Almendarez-Torres. In Blakely, the Supreme

Court reviewed a sentence imposed under a state sentencing guidelines system and

held that judicial factual findings do not permit a state court to impose a greater

sentence than that justified by the facts reflected in the jury verdict and/or

admitted by the defendant. Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537.

However, the Blakely Court expressly indicated that it was applying the principle,

first announced in Apprendi, that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Blakely, 542 U.S. at 301, 124 S.Ct. at 2536. Thus, like Apprendi, Blakely carved

out an exception to its general rule for enhancements based upon judicial findings

regarding prior convictions.

      United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), also reaffirmed the principle that prior convictions need not be alleged in

an indictment or proven to a jury. See Booker, ___ U.S. ___, 125 S.Ct. at 756

                                           7
(stating that “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt”).

      Finally, in Shepard v. United States,___ U.S. ___, 125 S.Ct. 1254,

161 L.Ed.2d 205 (2005), the Supreme Court held that sentencing courts may not

look beyond judicial records in determining whether a prior offense had

aggravating characteristics that would result in an increased sentence. Id. at ___,

125 S.Ct. at 1263. However, the majority expressly indicated that a defendant’s

guilty plea may establish the fact – as opposed to the underlying circumstances –

of a prior conviction. Id.

      In the instant case, the only enhancement which had any effect upon

Williams’s sentence was the determination that he was a career offender within the

meaning of § 924(e). However, the § 924(e) enhancement was constitutionally

permissible for two reasons. First, under Almendarez-Torres, previous

convictions that result in an enhanced sentence need not be charged in an

indictment or proven beyond a reasonable doubt. See Almendarez-Torres,

523 U.S. at 226-27, 118 S.Ct. at 1222. Second, Williams admitted in open court

that he had been convicted of the three offenses which triggered the § 924(e)

                                          8
enhancement. Because an admission by a defendant is sufficient evidence to

support a sentencing enhancement, the § 924(e) enhancement would be proper

even if Almenarez-Torres did not apply. See Booker, ___ U.S. at ___,

125 S.Ct. at 756.

                            III. Due Process Challenge

      When a defendant raises a challenge to a plea colloquy that he did not raise

in district court, plain error review applies. United States v. Monroe,

353 F.3d 1346, 1349 (11th Cir. 2003). To prevail under the plain error standard,

the appellant must show “(1) an error occurred; (2) the error was plain; (3) it

affected his substantial rights; and (4) it seriously affected the fairness of the

judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265

(11th Cir. 2003).

      We have indicated that, before receiving an enhanced sentence under

§ 924(e), the defendant “must be notified of the mandatory minimum and

maximum possible penalty as required by Fed.R.Crim.P. 11(c)(1).” United States

v. Cobia, 41 F.3d 1473, 1476 (11th Cir. 1995). Furthermore, “due process

requires reasonable notice of and opportunity to be heard concerning the prior

convictions.” Id. Nothing in Cobia indicates that the defendant must know the




                                           9
maximum penalty he faces when he initially enters a guilty plea, or that providing

such information during a supplemental plea colloquy is legally insufficient.



      In the instant case, after it became apparent that Williams was subject to a

§ 924(e) enhancement, the district court continued sentencing for almost two

weeks to allow Williams to decide whether to withdraw his guilty plea. When

Williams indicated that he wished to stand by his guilty plea, the district court

conducted a supplemental plea colloquy during which it apprised Williams of the

minimum and maximum sentences permitted by § 924(e). The district court also

enumerated the three predicate convictions that triggered the § 924(e)

enhancement, and Williams expressly admitted to all of these convictions and said

that he understood that a § 924(e) enhancement would apply. Thus, because the

supplemental plea colloquy complied with the requirements we articulated in

Cobia, no due process violation occurred.

                 IV. Refusal to Grant a Downward Departure

      “A district court’s refusal to depart downward from the sentencing guideline

range is not reviewable on appeal, unless the district court denied the departure

because it erroneously believed that it had no authority to depart downward.”

United States v. Liss, 265 F.3d 1220, 1231 (11th Cir. 2001).

                                         10
      In the instant case, there is no indication that the district court erroneously

believed that it lacked the authority to depart downward. Accordingly, we decline

to review the district court’s refusal to grant Williams a downward departure.

      Having reviewed the parties’ briefs and the district court record and found

no error, we affirm.

      AFFIRMED.




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