                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 11-11929                 JANUARY 25, 2012
                        Non-Argument Calendar               JOHN LEY
                      ________________________               CLERK


               D.C. Docket No. 8:08-cr-00340-VMC-TBM-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus


ROBERT JERLOW,

                                                        Defendant-Appellant.


                     ________________________

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

                           (January 25, 2012)

Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
      Robert Jerlow appeals his sentence of 33 months of imprisonment following

his plea of guilty to using a communication facility in facilitating a conspiracy to

distribute and possess with the intent to distribute five or more kilograms of

cocaine. 21 U.S.C. § 843(b). Jerlow argues that the government breached its plea

agreement, he was denied a fair sentencing hearing, and his sentence is

unreasonable. The government argues that Jerlow’s last argument is barred by the

appeal waiver in his plea agreement. We affirm in part and dismiss in part.

      Jerlow and the government entered a plea agreement. The government

agreed to recommend that Jerlow receive a three-level adjustment for his

acceptance of responsibility, United States Sentencing Guidelines Manual § 3E1.1

(Nov. 2010), and to “consider whether [any] additional cooperation [from Jerlow]

qualifie[d] as ‘substantial assistance’ . . .[that would] warrant[] the filing for a

further reduction of sentence pursuant to USSG §5K1.1 and/or Fed. R. Crim. P.

35(b).” The agreement provided that Jerlow “underst[ood] that the determination”

of whether his cooperation qualified as substantial assistance “rest[ed] solely with

the United States Attorney for the Middle District of Florida,” and that Jerlow

“[could not] and [would] not challenge that determination, whether by appeal,

collateral attack or otherwise.” In the agreement, the government also “reserved

its right and obligation to report to the Court and the United States Probation

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Office all information concerning [Jerlow’s] background, character and conduct,

to provide relevant factual information, including the totality of [his] criminal

activities . . . not limited to the count[] to which [he] plead[ed],” and “to make any

recommendations it deem[ed] appropriate regarding the disposition of [his] case.”

Jerlow agreed to waive his right to appeal or challenge collaterally his sentence,

subject to three exceptions: his sentence “exceed[ed] the . . . applicable guidelines

range as determined by the Court”; his sentence exceeded the statutory maximum

penalty; or his sentence violated the Eighth Amendment.

      At the change of plea hearing, a magistrate judge discussed the plea

agreement with Jerlow. Jerlow said that he understood that the government could

disclose to the district court information unfavorable to him; the provision in the

plea agreement “allow[ed] the government to come to [Jerlow’s] sentencing and

speak in aggravation”; and the disclosure of adverse information did “not . . .

breach . . . the agreement.” Jerlow also stated that he understood that he had

waived his right to appeal his sentence, subject to the three exceptions. The

district court later accepted Jerlow’s plea of guilty.

      The government and Jerlow moved for Jerlow to receive a downward

departure based on his substantial assistance. See U.S.S.G. § 5K1.1. The

government moved for Jerlow to receive only a three-level downward departure

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because, although he had cooperated with law enforcement, the information he

had provided had not been helpful and he allegedly had defrauded two persons

while serving as a cooperating defendant. Jerlow moved for a 14-level downward

departure and a sentence of 5 months of probation, which was two months longer

than a sentence imposed on a female codefendant whom Jerlow had recruited to

broker cocaine. Jerlow attached to his motion a personal log that recorded his

cooperation with law enforcement.

      At the sentencing hearing, Jerlow argued that the government had breached

the plea agreement, but the district court disagreed. The district court granted

Jerlow a three-level downward departure for his substantial assistance and

determined that he had an advisory guideline range between 33 and 41 months of

imprisonment. The district court sentenced Jerlow to a term of imprisonment at

the low end of the guideline range.

      The district court did not err when it ruled that the government complied

with its plea agreement. Jerlow argues that the government violated the agreement

by disclosing information detrimental to him, but Jerlow acknowledged during his

guilty plea colloquy that the government had the right to disclose information that

was adverse to him. Jerlow also argues that the government failed to disclose the

“nature and extent of [his] cooperation,” but the government acknowledged that

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Jerlow cooperated fully, the government had available at the sentencing hearing an

agent to testify about Jerlow’s cooperation, and Jerlow submitted to the district

court a personal log about his cooperation. The government retained in the plea

agreement discretion to determine whether Jerlow had provided substantial

assistance and to what extent he was entitled, if at all, to a reduction of his

sentence. See United States v. Forney, 9 F.3d 1492, 1499–1500 (11th Cir. 1993).

The government did not breach its agreement by arguing that Jerlow was entitled

to a three-level downward departure.

      Jerlow argues, for the first time, that the district court made statements that

reveal that it denied Jerlow a fair sentencing hearing, but we disagree. The district

court stated that it had deferred “generally” to the recommendations of the

government about what extent to depart downward for substantial assistance and

had “departed differently” on previous occasions, but Jerlow had failed to provide

a “good reason” to do so “in this case.” These remarks are consistent with the

recommendation in the advisory guidelines that a district court give “[s]ubstantial

weight . . . to the government’s evaluation of the extent of the defendant’s

assistance,” U.S.S.G. § 5K1.1 cmt. n.3, and with the “‘reasonable assumption that

the government is in the best position to supply the court with an accurate report

of the extent and effectiveness of the defendant’s assistance,’” United States v.

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Chotas, 913 F.2d 897, 901 (11th Cir. 1990) (quoting United States v. White, 869

F.2d 822, 829 (5th Cir. 1989)). The district court stated that, based on its

experience in a “lot of sentencings,” Jerlow deserved a sentence of imprisonment

because he had delayed pleading guilty and had been a “bigger player” in the

conspiracy. “[D]istrict courts are given . . . wide latitude in sentencing . . .

[because of] their experience in handling criminal cases,” United States v. Shaw,

560 F.3d 1230, 1238 (11th Cir. 2009), and the district court was entitled to rely on

its experience to fashion a sentence appropriate for Jerlow.

      Jerlow argues that his sentence is unreasonable, but the argument is barred

by the appeal waiver in Jerlow’s plea agreement. Jerlow knowingly

and voluntarily waived the right to appeal this aspect of his sentence. See United

States v. Benitez-Zapata, 131 F.3d 1444, 1446–47 (11th Cir. 1997). We dismiss

the appeal of this issue.

      We AFFIRM Jerlow’s conviction. Jerlow’s appeal of his sentence is

DISMISSED.

      AFFIRMED IN PART, DISMISSED IN PART.




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