                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT
                                              U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            July 25, 2005
                             No. 03-16489                THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 98-00014-CR-T-23-EAJ

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

ST. ANNE NARCISSE,

                                                        Defendant-Appellant.

                       ________________________

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

                              (July 25, 2005)

Before BIRCH, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     St. Anne Narcisse appeals her conviction and 87-month sentence, imposed
after she pled guilty, pursuant to a written plea agreement, to distributing 50 grams

or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On appeal,

Narcisse argues that her written plea agreement is unenforceable because: (1)

during the plea colloquy, the magistrate judge misled her into believing that the

district court had unbridled discretion to depart below the Sentencing Guidelines

range for any reason, and (2) the Supreme Court’s subsequent decision in United

States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which

made the Guidelines advisory, destroyed the essence of the plea agreement.1

       Upon thorough review of the record, with particular attention to the

transcripts of the plea colloquy and sentencing hearings, and careful review of the

parties’ briefs, we affirm in part and dismiss in part.

       For the first time on appeal, Narcisse claims that the written plea agreement


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           As for Narcisse’s Booker challenge to the district court’s computation of her offense
level, her written plea agreement contained a valid sentence appeal waiver that precludes her from
challenging her sentence based on Booker. Our de novo of the record reveals that Narcisse
knowingly and voluntarily waived her right to appeal her sentence. United States v. Benitez-Zapata,
131 F.3d 1444, 1446 (11th Cir. 1997) (reviewing whether a defendant knowingly and voluntarily
waived her right to appeal her sentence de novo). We have held that “the right to appeal a sentence
based on Apprendi/Booker grounds can be waived in a plea agreement.” United States v. Rubbo,
396 F.3d 1330, 1335 (11th Cir. 2005), pet. for cert. filed, (U.S. June 7, 2005) (No. 04-1663); see
also United States v. Grinard-Henry, 399 F.3d 1294, 1295-96 (11th Cir.), cert. denied, 125 S. Ct.
2279 (2005) (concluding that “the general appeal-waiver language of the plea agreement [was] broad
enough to include an Apprendi/Blakely/Booker claim”). Like in Grinard-Henry, Narcisse’s
Booker challenge does not fit within any of the plea agreement’s enumerated exceptions to the
appeal waiver. Thus, we dismiss the appeal as to the sentencing issue Narcisse raises.


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should not be enforced because, at the plea colloquy, the magistrate judge failed to

include the qualifying language “in some circumstances” when describing the

district court’s ability to grant a downward departure. Narcisse asserts that this

omission led her to believe that the district court had unbridled discretion to depart

below the Guideline range for any reason.

      When a defendant fails to object to a Fed. R. Crim. P. 11 violation in the

district court, we review the district court’s compliance with Rule 11 for only plain

error. United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). We will

correct plain error where (1) there is an error; (2) the error is plain or obvious; (3)

the error affects the defendant’s substantial rights in that it was prejudicial and not

harmless; and (4) the error seriously affects the fairness, integrity, or public

reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304,

307 (11th Cir. 1996). A defendant seeking reversal of his conviction after a guilty

plea, on the basis that the court committed “plain error under Rule 11, must show a

reasonable probability that, but for the error, he would not have entered the plea.”

United States v. Dominguez Benitez, 542 U.S. 74, ____, 124 S. Ct. 2333, 2340,

159 L. Ed. 2d 157 (2004).

      A court accepting a plea of guilty must comply with Rule 11, and, in

particular, address the three “core concerns” by ensuring that (1) the defendant

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understands the nature of the charges; (2) the defendant understands the

consequences of her plea; and (3) the guilty plea is free from coercion. See United

States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996). “The nature of a Rule 11

inquiry necessarily varies from case to case, and there is no one mechanical or

precise juncture to which a district judge must conform in advising a defendant of

the nature of the charges to which he is pleading guilty.” United States v. James,

210 F.3d 1342, 1344 (11th Cir. 2000) (quotation omitted). Indeed, Rule 11 does

not require the district court to read the specified items in haec verba, and any

variance or deviation from the procedures that the rule mandates that does not

affect a defendant’s substantial rights constitutes harmless error. United States v.

Hernandez-Fraire, 208 F.3d 945, 950 (11th Cir. 2000). Generally, we will uphold

a plea colloquy, even one involving a technical violation Rule 11, so long as the

district court adequately addressed the three core concerns. Id.

      As for Narcisse’s instant argument, according to Fed. R. Crim. P.

11(b)(1)(M), before accepting a guilty plea, a district court must inform the

defendant of, and determine that the defendant understands, “the court’s obligation

to apply the Sentencing Guidelines, and the court’s discretion to depart from those

guidelines under some circumstances.” Our review of the plea colloquy reveals

that the magistrate judge specifically advised Narcisse that she would be sentenced

                                         4
pursuant to the Sentencing Guidelines and her plea agreement with the

government. Notably, the plea agreement, which Narcisse signed (and initialed at

the bottom of each page), specifically informed Narcisse that the district court had

the discretion to depart from the Guidelines “in some circumstances.” Cf. United

States v. Jones, 143 F.3d 1417, 1420 (11th Cir. 1998) (noting that this Court has

consistently considered written plea agreements to be part of the record of the

Rule 11 hearing). On this record, we can find no error, let alone plain error,

resulting from the magistrate judge’s discussion of Narcisse’s sentence at the plea

colloquy.

      We are likewise unpersuaded by Narcisse’s argument that Booker rendered

the plea agreement unenforceable.      Because a defendant may not rely on a

subsequent unanticipated change in the law to void an otherwise valid guilty plea,

Narcisse’s plea agreement is enforceable despite the Supreme Court’s subsequent

decision in Booker. Cf. United States v. Sanchez, 269 F.3d 1250, 1283-85 (11th

Cir. 2001) (en banc) (applying Brady v. United States, 397 U.S. 742, 90 S. Ct.

1463, 25 L. Ed. 2d 747 (1970), to reject the defendants’ arguments that their guilty

pleas had been rendered involuntary and unknowing in light of the Supreme

Court’s subsequent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000)). “[A] voluntary plea of guilty intelligently made in

                                         5
light of the then applicable law does not become vulnerable because later judicial

decisions indicate that the plea rested on a faulty premise.” Brady, 397 U.S. at

757; see also United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (holding that

defendant’s plea was voluntary notwithstanding the effect of Booker, as “the

possibility of a favorable change in the law occurring after a plea is one of the

normal risks that accompany a plea”). Thus, the Booker decision did not render

Narcisse’s plea involuntary.

      In sum, we find no reversible error and affirm Narcisse’s conviction.

Pursuant to the valid appeal-waiver provision in the plea agreement, we dismiss

Narcisse’s sentencing claim.

      AFFIRMED IN PART, DISMISSED IN PART.




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