                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          JANUARY 31, 2006
                             No. 05-11675                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 04-00031-CR-ORL-13KRS

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                  versus

CARLOS VERDEL, SR.,

                                                        Defendant-Appellant.


                       ________________________

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


                            (January 31, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Carlos Verdel, Sr. appeals his 97-month sentence, imposed after he pled

guilty to conspiring to possess with the intent to distribute cocaine in violation of

21 U.S.C. §§ 841(a)(1) and 846. On appeal he argues that the district court

(1) misapprehended its authority to grant a downward departure for family

responsibilities under U.S.S.G. § 5H1.6, and (2) failed to properly consider the

sentencing factors in 18 U.S.C. § 3553(a). The government asserts that Verdel

waived his right to appeal the downward departure issue and that we lack

jurisdiction to review whether the § 3553(a) factors were properly considered. For

the reasons set forth more fully below, we dismiss in part, and affirm in part.

      Verdel pled guilty to conspiracy to possess with intent to distribute five

kilograms or more of cocaine pursuant to an agreement, which stipulated to the

following facts: Verdel was a distributor of marijuana and cocaine and would

purchase multiple pounds of marijuana and multiple kilograms of cocaine from

Javier Barajas from sometime in 2000 to February 2004. As to quantities, Verdel

admitted to having completed five marijuana transactions in 2000 for

approximately 100 pounds total, and to having purchased approximately 22

kilograms of cocaine from mid-2003 to February 2004.

      Included in Verdel’s plea agreement was a sentence appeal waiver that

waived the right to appeal his sentence on any ground “except for an upward



                                           2
departure by the sentencing judge, a sentence above the statutory maximum, or a

sentence in violation of law apart from the sentencing guidelines.” During

Verdel’s plea colloquy before a magistrate, the effect of the appeal waiver was

explained to him, including its potential for precluding an appeal under Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Verdel

indicated, through an interpreter, that he understood how the appeal waiver limited

his rights.

       A presentence investigation report (PSI) set Verdel’s offense level at 34

based upon a finding of at least 3,000, but less than 10,000 kilograms of marijuana

or its equivalency, U.S.S.G. § 2D1.1(c)(3). No enhancements were made, but

Verdel was given a three-level reduction for acceptance of responsibility pursuant

to U.S.S.G. §§ 3E1.1(a) and (b), for a total offense level of 31. Verdel was found

to be at criminal history category III, which, at offense level 31, provided for an

advisory guidelines range of 135-168 months’ imprisonment. The PSI noted that

the defendant might be eligible for a downward departure based upon substantial

assistance to the government under U.S.S.G. § 5K1.1.

       The defendant lodged several objections to the PSI, first arguing that he was

entitled to a two-level reduction for having a minor role in the offense. Next,

Verdel argued that his criminal history points were over counted because two



                                           3
points came from the same conviction, constituting a Double Jeopardy violation.

Verdel also argued that he was entitled to a downward departure because of his

physical health under U.S.S.G. § 5H1.4, and because of his need to provide

financial and emotional support for his family under U.S.S.G. § 5H1.6. Finally,

Verdel objected in a memorandum that he should be held accountable for only 12

to 14 kilograms of cocaine, which would reduce his base offense level to 32 before

any redactions.

      At his sentencing hearing, Verdel pursued his objections, and the district

court indicated that it believed Verdel’s criminal history to be overstated in the

PSI. Verdel also clarified that his objection to the amount of drugs forming his

base offense level was not an objection, but a statement for the court to consider,

namely that, despite the plea agreement, Verdel only handled somewhere between

12 and 14 kilograms of cocaine. The court, after hearing Verdel’s argument for a

minor-role reduction, found no basis for that reduction in the facts set forth in the

plea agreement or the PSI. As to Verdel’s criminal history, the court found that a

level III was inappropriate, and under § 4A1.3(b)(1), reduced his criminal history

category to II.

      The district court found that Verdel’s physical health did not warrant a

downward departure under § 5H1.4, and, after noting that deprivation of support



                                           4
was present in virtually every sentencing, and that the Sentencing Commission felt

that the issue was one that should be excluded from consideration, found that a

departure was not warranted under § 5H1.6 either. However, in response to the

government’s motion for a § 5K1.1 substantial assistance departure, the court

decided that, despite the fact Verdel should have provided more assistance, it

would depart two levels in order to remain consistent with the sentencing of other

defendants in the case.

      The court also heard Verdel’s statement, in which he apologized for harming

his family and his actions. Ultimately, the court found that Verdel had admitted to

4,445 kilograms of drugs, and that, with respect to the family being the victim,

such was the case in just about every sentencing. It expressed sympathy to

Verdel’s family, but noted that Verdel had made his family a victim by

participating in the crime. The court noted that the bottom of the guideline range

was 97 months’ imprisonment, the same sentence for another co-conspirator, and

one of the higher sentences imposed in the case. It found no reason to vary from

the recommended sentence, and, therefore, imposed a 97-month sentence.

                          I. Family Support Departure

      Verdel argues that the district court erroneously believed that it lacked the

authority to grant a downward departure based on family ties and responsibilities



                                          5
under U.S.S.G. § 5H1.6. The government responds that Verdel knowingly and

voluntarily waived his right to challenge the district court’s denial of a downward

departure in his guilty plea.

      “Whether 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.” United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).

“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.” Id.

      In the instant case, a magistrate judge explained the effect of the appeal

waiver contained in Verdel’s plea agreement, and Verdel indicated that he

understood how the waiver would limit his right to appeal. Accordingly, unless an

exception applies, Verdel’s waiver was knowing and voluntary, and will be

enforced.

      The exceptions in the waiver permitted an appeal of Verdel’s sentence if the

district court (1) departed upward, (2) imposed a sentence above the statutory

maximum, or (3) imposed a sentence in violation of law apart from the sentencing

guidelines. The refusal to downwardly depart does not fit any of the exceptions in



                                            6
the waiver, and, therefore, we dismiss this issue. See Benitez-Zapata, 131 F.3d at

1446 n.3 (holding that the refusal of the government to file a § 5K1.1 motion for a

substantial assistance departure was not covered by the exceptions to the appeal

waiver); United States v. Grinard-Henry, 399 F.3d 1294, 1297 n.1 (11th Cir.)

(holding that the denial of a downward departure was clearly waived by the appeal

waiver), cert. denied, 125 S.Ct. 2279 (2005).

                      II. Jurisdiction and § 3553(a) Factors

      Verdel next argues that the district court failed to consider the sentencing

factors espoused in 18 U.S.C. § 3553(a), and that had the factors been properly

considered, Verdel would have received a lesser sentence due to his poor medical

condition, role in the conspiracy, and need to support his family. The government

argues that we lack jurisdiction to review Verdel’s appeal under 18 U.S.C.

§ 3742(a). We recently rejected the government’s jurisdictional argument, holding

that we continue to have jurisdiction under § 3742(a)(1) to review sentences for

unreasonableness. See United States v. Martinez, No. 05-12706, manuscript. op at

8-9 (11th Cir. Jan. 9, 2006).

      As to the merits of Verdel’s argument–that the district court failed to

properly consider the § 3553(a) sentencing factors–he did not object to his




                                          7
sentence on this ground, and we will review only for plain error.1 See United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied 125 S.Ct. 2935

(2005) (holding that a defendant’s failure to object to his sentence on Sixth

Amendment grounds meant that this Court would review only for plain error).

“An appellate court may not correct an error the defendant failed to raise in the

district court unless there is: (1) error, (2) that is plain, and (3) that affects

substantial rights.” Id. (quotation and citation omitted). “If all three conditions are

met, an appellate court may then exercise its discretion to notice a forfeited error,

but only if (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id.

       We conclude that the district court committed no error, plain or otherwise.

The record indicates that the district court considered the statutory factors and

purposes prior to imposing a sentence that it found to be adequate to satisfy those

purposes. Moreover, the record reflects that the district court considered Verdel’s

medical condition, his role in the conspiracy, and the effect on Verdel’s family.

Furthermore, the district court reduced Verdel’s criminal history category and



       1
         Verdel’s objections to the refusal to downwardly depart, and his challenge to the refusal
to downwardly depart, are challenges to the application of the guidelines, not to the overall
reasonableness of his sentence under Booker. See United States v. Winingear, 422 F.3d 1241,
1245 (11th Cir. 2005) (construing a challenge to the district court’s failure to downwardly depart
as a challenge to the application of the Guidelines).

                                                8
downwardly departed for substantial assistance to give Verdel a sentence that was

less than the otherwise applicable statutory minimum of 120 months’

imprisonment. While it did not specifically elaborate on each and every factor, this

Court has squarely held that “nothing in Booker or elsewhere requires the district

court to state on the record that it has explicitly considered each of the § 3553(a)

factors or to discuss each of the § 3553(a) factors.” United States v. Scott, 426

F.3d 1324, 1329 (11th Cir. 2005). Accordingly, the district court did not err when

imposing Verdel’s sentence because it considered the statutory factors and was not

required to elaborate or discuss each of them on the record.

       Finally, even if the district court had erred, Verdel has failed to show how

his substantial rights were violated. He does not allege that the guidelines were

incorrectly calculated, nor does the record reflect that his sentence would, in any

way, be different had the district court explicitly explained its consideration of

each § 3553(a) factor. Thus, his substantial rights were not violated.2 See

Rodriguez, 398 F.3d at 1301 (holding that, under plain error review, a defendant

alleging Booker error must show a reasonable probability of a different sentence

absent the error).


       2
          We note that Verdel was sentenced post-Booker, and the district court understood the
guidelines to be advisory. Thus, there is no statutory error involved. See United States v.
Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (holding that statutory error occurs when a
district court sentences a defendant under a mandatory guidelines scheme).

                                                9
      For the foregoing reasons, we dismiss Verdel’s challenge to the district

court’s refusal to downwardly depart, and conclude that his sentence should be

affirmed.

      DISMISSED in part, AFFIRMED in part.




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