                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________            FILED
                                               U.S. COURT OF APPEALS
                            No. 11-11533         ELEVENTH CIRCUIT
                        Non-Argument Calendar         JAN 9, 2012
                      ________________________        JOHN LEY
                                                        CLERK
               D.C. Docket No. 8:09-cr-00148-EAK-EAJ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

MARCOS APONTE,

                                                        Defendant-Appellant.

                     ________________________

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

                            (January 9, 2012)

Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.

PER CURIAM:
       Marcos Aponte pled guilty to possessing child pornography, in violation of

18 U.S.C. § 2252(a)(4)(B), (b)(2), and attempting to transfer obscene material to a

minor, in violation of 18 U.S.C. § 1470. Aponte now appeals his convictions and

121-month total sentence, arguing the district court erred by (1) allowing his

conviction under 18 U.S.C. § 1470, even though no individual actually under the

age of 16 received any obscene material, (2) imposing a lifetime term of

supervised release in violation of the Eighth Amendment, and (3) assessing a five-

level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for exchanging child

pornography for something of value.

                                                I.

       Aponte argues the district court committed plain error by accepting his

guilty plea for violating 18 U.S.C. § 14701 because the recipient of the obscene

material he transferred was an undercover officer, not an individual actually under

the age of 16. Aponte concedes, however, that he did not timely object to the

magistrate judge’s recommendation that the district court accept his guilty plea.




       1
          Section 1470 states, in relevant part, “Whoever . . . knowingly transfers obscene matter
to another individual who has not attained the age of 16 years, knowing that such other individual
has not attained the age of 16 years, or attempts to do so,” shall be fined or imprisoned or both.
18 U.S.C. § 1470.

                                                2
        Rule 59 of the Federal Rules of Criminal Procedure provides that the failure

to object to a magistrate judge’s findings and recommendations “waives a party’s

right to review.” Fed. R. Crim. P. 59(b)(2). Although Aponte claims that Rule

59(b)(2) governs only a party’s right to review in district court, the Advisory

Committee explains that the rule’s “waiver provision is intended to establish the

requirements for objecting in a district court in order to preserve appellate review

of magistrate judges’ decisions.” Fed. R. Crim. P. 59 advisory committee’s note

(2005) (emphasis added). Here, Aponte waived this challenge by failing to object

to the magistrate judge’s recommendation that the district court accept the guilty

plea.2 Accordingly, we affirm the conviction without reaching the merits of

Aponte’s argument.3


        2
          Prior to the adoption of Rule 59(b)(2) in 2005, this Court held that a failure to object to
a magistrate judge’s recommendation “limits the scope of appellate review of factual findings to
plain error or manifest injustice but does not limit review of legal conclusions.” United States v.
Warren, 687 F.2d 347, 348 (11th Cir. 1982). Since the adoption of Rule 59(b)(2), however,
panels of this Court have found that a failure to object to a magistrate judge’s recommendation
that the district court accept a guilty plea constitutes a waiver. See, e.g., United States v.
Martinez-Barrera, 348 F. App’x 533, 534 (11th Cir. 2009) (unpublished); United States v.
Granados-Gutierrez, 356 F. App’x 307, 309 (11th Cir. 2009) (unpublished); United States v.
Flores, 257 F. App’x 164, 165-66 (11th Cir. 2007) (unpublished); but see United States v.
Cullars, 272 F. App’x 820, 821 (11th Cir. 2008) (unpublished) (relying on pre-2005 case law,
rather than Rule 59).
        3
          We note that Aponte’s appeal would fail on the merits, even if Aponte had not waived
this challenge. “It is the law of this circuit that, at least where the explicit language of a statute or
rule does not specifically resolve an issue, there can be no plain error where there is no precedent
from the Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319
F.3d 1288, 1291 (11th Cir. 2003). In this case, neither the “explicit language” of § 1470 nor

                                                    3
                                                II.

       Aponte next argues his lifetime term of supervised release constitutes cruel

and unusual punishment in violation of the Eighth Amendment.4 Because Aponte

did not raise an Eighth Amendment objection in the district court, we review his

sentence for plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.

2005).

       The Eighth Amendment provides that “excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII. While Aponte identifies several factors, such as his

Asperger’s Syndrome, that may make his sentence particularly burdensome, he

does not cite any law establishing that the district court plainly erred by imposing

a lifetime term of supervised release under these circumstances. Accordingly,

Aponte’s argument fails.




precedent interpreting § 1470 indicates that the district court plainly erred in accepting Aponte’s
guilty plea.
       4
          As part of his plea agreement, Aponte waived his right to appeal his sentence, subject to
several specific exceptions, one of which permits an appeal on Eighth Amendment grounds.

                                                 4
                                         III.

      Finally, Aponte claims the district court erred in imposing a five-level

sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(B). The Government, in

response, moves for partial dismissal of this appeal, arguing that Aponte waived

his right to appeal this issue as part of his plea agreement.

      We review the validity of a sentence appeal waiver de novo. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver is

valid as long as it was made knowingly and voluntarily. United States v. Bushert,

997 F.2d 1343, 1350 (11th Cir. 1993). For a sentence appeal waiver to be valid,

the government must show that: (1) the district court specifically questioned the

defendant about the waiver or (2) the record makes it “manifestly clear” that the

defendant otherwise understood the full significance of the waiver. Id. at 1351.

      Aponte does not dispute that his challenge to the five-level enhancement

falls within the scope of the appeal waiver contained in his plea agreement, nor

does he claim that the district court failed to question him specifically about the

waiver. He argues only that he should be permitted to appeal his sentence

enhancement because (1) the district court judge told him, “You can make your

argument to the 11th Circuit” regarding the enhancement, and (2) the plea

agreement did not specify a guideline range for his sentence.

                                           5
      A statement from a sentencing court suggesting that a defendant can or

should appeal a sentence has no effect on the terms of a prior appeal waiver.

United States v. Howle, 166 F.3d 1166, 1168-69 (11th Cir. 1999); see also United

States v. Bascomb, 451 F.3d 1292, 1297 (11th Cir. 2006) (stating that an appeal

waiver “cannot be vitiated or altered by comments the court makes during

sentencing”). Accordingly, the district court’s remark that Aponte could appeal

the sentencing enhancement does not invalidate his appeal waiver.

      Aponte argues that even if the district court’s statement did not invalidate

the appeal waiver, the Government’s failure to object to the statement

demonstrates an intent to invalidate the appeal waiver, or in the alternative,

constitutes a waiver of the Government’s right to seek dismissal of the appeal.

Aponte’s position, however, is at odds with the law of this Circuit. See Howle,

166 F.3d at 1168-69 (enforcing appeal waiver and dismissing appeal, where

Government failed to object following district court’s statement inviting defendant

to appeal).

      Aponte also claims that he should be permitted to appeal his sentencing

enhancement because the plea agreement did not specify a guideline range for his

sentence. He suggests that he could not have knowingly and voluntarily entered

into an appeal waiver without a specific guideline range in place. Aponte,

                                          6
however, accepted the appeal waiver knowing that the plea agreement contained

no specific guideline range. The language of the plea agreement makes clear that

the applicable guideline range would be determined by the district court judge at a

later time. Moreover, when the magistrate judge at Aponte’s plea hearing asked

whether he understood that the sentencing “judge has the sole discretion to impose

whatever sentence the judge thinks is authorized,” Aponte answered in the

affirmative. As a result, we find that Aponte knowingly and voluntarily entered

into the appeal waiver and accordingly dismiss his appeal of the five-level

sentencing enhancement.

      AFFIRMED IN PART AND DISMISSED IN PART.




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