                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-10629                ELEVENTH CIRCUIT
                         Non-Argument Calendar               JUNE 1, 2011
                       ________________________               JOHN LEY
                                                               CLERK
                D.C. Docket No. 3:08-cr-00427-HLA-JRK-1

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

HENOCK COLIMON, JR.,
a.k.a. Henock,
a.k.a. Haiti,
a.k.a. "H",
a.k.a. Marco,

                                                     Defendant-Appellant.

                       ________________________

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

                              (June 1, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Henock Colimon, Jr. appeals his convictions, pursuant to a guilty plea, and

combined 300-month sentence for conspiracy to distribute 50 grams or more of

cocaine base and 500 grams or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)-(B), 846, and possession of a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1). He argues that the

government breached the plea agreement by failing to make a substantial-

assistance motion, and he suggests that his plea is invalid because he entered it in

reliance on the purported promise of such a motion. He further argues that his

sentence appeal waiver does not bar review of whether (1) it was error to impose

his firearm-possession and drug-trafficking sentences to run consecutively and (2)

the total 300-month sentence was substantively unreasonable. For the reasons set

forth below, we affirm.

                                          I.

      Colimon and his codefendant resided in an apartment in Jacksonville,

Florida, from which they sold crack and powder cocaine. While distributing the

drugs, Colimon sometimes was armed with a revolver or semiautomatic pistol.

After the codefendant relocated to another apartment, Colimon remained in the

first apartment and continued to distribute drugs from within it. The codefendant

continued to assist Colimon by driving him to other locations to conduct drug

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deals and by allowing him to use her cell phone to facilitate his drug business.

      On one occasion in August 2008, a confidential source (“CS”) arranged a

drug transaction with Colimon. The CS used his own vehicle to pick up Colimon

and, as instructed by law enforcement, drove through a stop sign. An officer

conducted a traffic stop and, upon observing a handgun near the vehicle’s console,

ordered Colimon and the CS to exit the vehicle. A search of the vehicle revealed

40.5 grams of powder cocaine and a personal-use amount of marijuana. Colimon

had $830 in his pants pocket. On an occasion in October 2008, Colimon was a

passenger in a vehicle that was stopped for traffic violations. The officer asked

Colimon, who was obviously nervous, to exit the vehicle while it was searched.

Before complying, Colimon placed on the floorboard a shoe box that he was

holding. As he exited the vehicle, he dropped the lid to a styrofoam cup that was

in the vehicle. The cup contained marijuana and marijuana seeds. The shoe box

contained 424 grams of marijuana, a de minimis quantity of cocaine base, and 1

ounce of powder cocaine. Officers also found a loaded pistol in the vehicle, and

Colimon had $420 in his pants pocket.

      After Colimon was arrested, he used the jail’s telephone system to call his

codefendant. He instructed her on how to continue his drug business during his

incarceration, including how to contact his customers, which customers to

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continue serving and which to avoid, how to prepare, package, and distribute

cocaine, and who to engage to cook powder cocaine into crack for her.

      In 2009, Colimon was charged in all 11 counts of a superseding indictment

that was returned against him and the codefendant: (Count 1) conspiracy to

distribute 50 grams or more of cocaine base and 500 grams or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)-(B), 846; (Counts 2-3) making a

residence available for the unlawful storage and distribution of cocaine and

cocaine base, in violation of 21 U.S.C. § 856(a)(2), (b), 18 U.S.C. § 2; (Counts 4,

7, & 11) possession of a firearm in furtherance of a drug-trafficking crime, in

violation of 18 U.S.C. § 924(c)(1); (Counts 5 & 8) possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2); (Counts

6 & 9) possession with intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C); and (Count 10) possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D).

      Colimon entered into a negotiated agreement whereby he would plead guilty

to Counts 1 and 4. The agreement included the following cooperation provision:

      If the cooperation is completed prior to sentencing, the government
      agrees to consider whether such cooperation qualifies as “substantial
      assistance” . . . warranting the filing of a motion at the time of
      sentencing recommending (1) a downward departure from the
      applicable guideline range pursuant to U.S.S.G. § 5K1.1, or (2) the

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      imposition of a sentence below a statutory minimum . . . pursuant to
      18 U.S.C. § 3553(e), or (3) both. If the cooperation is completed
      subsequent to sentencing, the government agrees to consider whether
      such cooperation qualifies as “substantial assistance” . . . . warranting
      a filing of a motion for a reduction of sentence within one year of the
      imposition of sentence pursuant to Fed. R. Crim. P. 35(b). In any
      case, the defendant understands that the determination as to whether
      “substantial assistance” has been provided or what type of motion
      related thereto will be filed, if any, rests solely with the United States
      Attorney for the Middle District of Florida, and the defendant agrees
      that defendant cannot and will not challenge that determination,
      whether by appeal, collateral attack, or otherwise.

Other provisions in the agreement stated that the government “reserve[d] its right

to make any recommendations it deem[ed] appropriate regarding the disposition of

this case, subject to any limitations set forth” elsewhere in the agreement, that the

court would not be bound by any discussions between the government and

Colimon’s counsel, and that Colimon would not be permitted to withdraw his plea

if the court rejected any of the parties’ recommendations. Finally, the agreement

included a waiver of Colimon’s right to appeal or collaterally attack his sentence

on any ground, including miscalculation of the guideline range,

      except (a) the ground that the sentence exceeds the defendant’s
      applicable guidelines range as determined by the [c]ourt 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, . . . then the defendant is released from his
      waiver . . . .

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      At the plea colloquy, the magistrate judge informed Colimon that the district

judge would have the authority to impose a sentence that was more or less severe

than the advisory guideline range, up to and including the statutory maximum

sentence. Colimon expressed his understanding that he would not have a right to

withdraw his plea if the sentence imposed were to be more severe than he

expected. The magistrate reviewed the statutory penalties, individually and in the

aggregate. Colimon acknowledged his signature on the plea agreement and his

initials on each page of the agreement. He acknowledged that he had read the

entire agreement, understood it, and was bound by it.

      With respect to the cooperation provision, the magistrate stated,

      [T]he government’s agreeing to consider your cooperation and . . .
      whether it amounts to substantial assistance as that term is defined in
      the guidelines and under the law, and . . . to consider filing the
      appropriate motion to reduce your sentence . . . at the time of
      sentencing or sometime after sentencing.
             The main thing I want to make sure you understand is the
      government’s not promising at this point to file a motion to reduce
      your sentence.
             They’re just agreeing at this point to consider your cooperation
      in determining whether you’ve provided substantial assistance . . .
      and what motion to file, if any.

Colimon said that he understood. The magistrate added, “[T]he determination as

to whether substantial assistance has been provided or what type of motion related

thereto will be filed, if any, rests solely with the United States Attorney . . . , and

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you agree that you cannot and will not challenge that determination, whether by

appeal, collateral attack, or otherwise.” Colimon expressed his agreement.

      The magistrate also reviewed the terms of the sentence appeal waiver and

explained the term “collateral attack.” Colimon indicated that he understood the

implications of the waiver and that he was making it freely and voluntarily.

      After the government read the factual basis for the plea, Colimon confirmed

that he was entering the plea freely and voluntarily, and without coercion or

intimidation. The magistrate asked whether “anyone made any promises or

assurances to [him] of any kind to get [him] to plead guilty[,] other than what[

was] stated in the plea agreement,” and whether he was “relying on any agreement,

discussion, promise, or understanding with anyone concerning what sentence

[would] be imposed . . . other than what[ was] in the plea agreement.” Colimon

answered “no” to both questions. Colimon stated affirmatively that he would

receive a sentence of 25 years’ to life imprisonment, but he indicated that he did

not know where in that range he would be sentenced and that no one had promised

him a light sentence or other reward in exchange for his guilty plea. Both the

prosecutor and Colimon’s counsel told the court that no assurances, promises, or

understandings had been made that were different or contrary to the terms in the

plea agreement. The magistrate found that the plea had been entered freely,

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voluntarily, knowingly, and intelligently, and the district court accepted the plea

on the magistrate’s recommendation.

      The probation office determined that the § 924(c) offense in Count 4

required a mandatory, consecutive 60-month term of imprisonment. As to Count

1, the probation office determined that Colimon was accountable for 50 grams of

cocaine base, 500 grams of cocaine, and 424 grams of marijuana, for a total

marijuana equivalency of 1100.424 kilograms. His base offense level of 30,

pursuant to § 2D1.1 and comment. (n.10(D)(i)), was reduced by 3 levels for

acceptance of responsibility, pursuant to § 3E1.1(a)-(b), for a total offense level of

27. His 11 criminal-history points placed him in criminal history category V.

      Colimon was subject to statutory sentencing ranges of 20 years’ to life

imprisonment for Count 1, and 5 years’ to life imprisonment for Count 4, to run

consecutively. His guideline range for Count 1 of 120 to 150 months’

imprisonment became exactly 240 months’ imprisonment due to the operation of

the mandatory minimum, and another 60 months were added to the guideline

sentence due to Count 4. Colimon also was subject to a statutory minimum and a

guideline sentence of ten years’ supervised release for Count 1, as well as statutory

and guideline maximums of five years’ supervised release for Count 4.

      At the sentencing hearing, Colimon stated that he was not prepared to go

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forward with sentencing because the government had not yet filed a substantial-

assistance motion. He indicated that an FBI investigation with which he had

cooperated was underway, and that the government was not yet in a position to file

the motion, so he asked the court to continue the sentencing hearing. The court

indicated that it was prepared to go forward with sentencing and would not

continue the case. The government added that it was prepared for sentencing, that

Colimon had not pled with any guarantee of a substantial-assistance motion, and

that it would not be prepared to make such a recommendation until after Colimon

had testified before a grand jury in the ongoing investigation. When the time

came, the government would consider in good faith Colimon’s cooperation and

decide whether to file a Rule 35 motion for a sentence reduction.

      The court denied the motion for a continuance and stated that it would

revisit the case if the government were to file a Rule 35 motion in the future.

Colimon indicated that he had signed the plea agreement with the expectation that

he would receive a substantial-assistance reduction, and that he believed the

government was engaging in “a little feet-dragging,” particularly as other

defendants in the past had received sentence reductions for far less cooperation

than Colimon had provided.

      The court reviewed the calculations in the PSI and Colimon objected to the

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continuing disparity between sentences for crack and powder cocaine offenses.

He further objected that his sentences should be imposed concurrently rather than

consecutively, although he acknowledged this Circuit’s controlling case law to the

contrary. The district court overruled his objections.

      The government noted that there had been no side deal during the plea

negotiations that would require the substantial-assistance motion to be filed based

on anything other than an assessment of Colimon’s assistance with the FBI

investigation. In light of Colimon’s offense conduct and extensive criminal

history, the government requested a 300-month mandatory-minimum sentence.

The court sentenced Colimon to 240 months’ imprisonment for Count 1 and 60

months’ imprisonment for Count 4, to run consecutively, as well as concurrent

terms of 10 and 5 years’ supervised release, respectively.

                                           II.

      As Colimon did not move to withdraw his plea in the district court, we

review the validity of the plea for plain error. See United States v. Mosley, 173

F.3d 1318, 1322 (11th Cir. 1999). “The four-prong test to establish plain error is:

(1) there must have been an error; (2) the error must have been plain; (3) the error

must have seriously affected substantial rights; and (4) the error must have

seriously affected the fairness, integrity, or public reputation of the judicial

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proceedings.” United States v. Woodard, 387 F.3d 1329, 1331 (11th Cir. 2004).

On direct appeal, we strongly presume that the defendant’s statements at the plea

colloquy were truthful, including his representation that he understood the

consequences of his plea. United States v. Medlock, 12 F.3d 185, 187 (11th Cir.

1994). “[A] defendant who seeks reversal of his conviction after a guilty plea, on

the ground that the district court committed plain error . . . , 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, 83, 124 S.Ct. 2333, 2340, 159

L.Ed.2d 157 (2004).

      We review de novo the question of whether the government breached its

plea agreement with the defendant. United States v. Nyhuis, 211 F.3d 1340, 1343

(11th Cir. 2000). We also review de novo the validity and interpretation of an

appeal waiver. See United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993)

(reviewing de novo whether a waiver was made knowingly and voluntarily); see

also United States v. Rubbo, 396 F.3d 1330, 1332-35 (11th Cir. 2005) (reviewing

de novo the interpretation of the terms of a waiver).

      Federal Rule of Criminal Procedure 11 “imposes upon a district court the

obligation and responsibility to conduct an inquiry into whether the defendant

makes a knowing and voluntary guilty plea.” United States v. Hernandez-Fraire,

                                          11
208 F.3d 945, 949 (11th Cir. 2000). That inquiry “must address three core

concerns underlying Rule 11: (1) the guilty plea must be free from coercion;

(2) the defendant must understand the nature of the charges; and (3) the defendant

must know and understand the consequences of his guilty plea.” Id. (quotation

marks omitted). As part of this inquiry, the court must inform the defendant of the

rights he will waive by pleading guilty, all of the required and potential penalties,

the procedure for calculating a sentencing range and determining a reasonable

sentence, and the terms of any appeal waiver in the plea agreement. Rule 11(b)(1).

      “Plea bargains . . . are like contracts and should be interpreted in accord

with what the parties intended.” Rubbo, 396 F.3d at 1334. Absent some

indication that the parties intended otherwise, the language of the agreement

should be given its ordinary and natural meaning. See id. at 1334-35.

      A sentence appeal waiver must be made knowingly and voluntarily.

Bushert, 997 F.2d at 1350-51. Such a waiver is one of the direct consequences of

a guilty plea, so it is part of the core concerns that must be addressed at a Rule 11

hearing. Id. at 1351. Thus, in order for the waiver to be valid, the court must have

specifically discussed it with the defendant during the Rule 11 hearing, or the

record must make manifestly clear that the defendant otherwise understood the full

significance of the waiver. Id. A waiver of the right to appeal may include

                                          12
difficult or debatable issues or even blatant error. United States v. Howle, 166

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

      The cooperation provision in Colimon’s plea agreement expressly stated

only that the government would “consider whether [his] cooperation qualifie[d] as

‘substantial assistance,’” and that if the government determined that a substantial-

assistance reduction was warranted, it would file either a pre-sentencing § 5K1.1

or § 3553(e) motion or a post-sentencing Rule 35 motion. It further stated that the

substantial-assistance determination rested solely with the government, that

Colimon agreed not to challenge that determination, and that the government

retained the right to recommend whatever sentence it deemed appropriate. During

the plea colloquy, the magistrate reviewed these provisions in detail, noted

specifically that the government had not promised to file a sentence-reduction

motion, and asked Colimon whether he understood that he would not be able to

challenge the government’s determination of whether substantial assistance had

been provided or whether a motion to that effect should be filed. Colimon,

counsel, and the prosecutor all assured the magistrate that no promises,

agreements, or understandings had been reached other than those contained in the

plea agreement, and Colimon explicitly told the magistrate that he knew that he

would be sentenced to at least 25 years’ imprisonment. The record contains no

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evidence that the government promised or otherwise obligated itself to file a

substantial-assistance motion prior to the sentencing hearing.

      Accordingly, the district court did not err, plainly or otherwise, when it

failed to find that Colimon had entered his plea in reliance upon such a promise

and that, as a consequence, the plea was not knowing and voluntary. See

Woodard, 387 F.3d at 1331; Hernandez-Fraire, 208 F.3d at 949; Medlock, 12 F.3d

at 187. Furthermore, because the plea agreement clearly did not promise that a

substantial-assistance motion would be filed, and nothing in the record suggests

that the parties intended otherwise, the government did not breach the agreement

by failing to file such a motion. See Rubbo, 396 F.3d at 1334-35. As to the appeal

waiver, the magistrate expressly reviewed its terms, and Colimon indicated that he

understood the waiver and that he was making it freely and voluntarily.

Accordingly, it is valid, as well. See Bushert, 997 F.2d at 1351.

      Because both the appeal waiver and the overall plea are valid and the

government is not in breach, Colimon may not appeal his sentence unless it is

above the guideline range as determined by the district court, above the statutory

maximum, or in violation of the Eighth Amendment. Colimon’s total 300-month

sentence is well below the statutory maximum of life imprisonment, it corresponds

to the guideline sentence calculated in the PSI and adopted by the district court,

                                         14
and a sentence below the statutory maximum generally does not trigger Eighth

Amendment concerns. See United States v. Moriarty, 429 F.3d 1012, 1024 (11th

Cir. 2005) (addressing the Eighth Amendment). Therefore, there are no

appealable issues arising from Colimon’s sentence. See Howle, 166 F.3d at 1169.

      For the foregoing reasons, we affirm Colimon’s convictions and sentences.

      AFFIRMED.




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