                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 05-15366                    MAY 5, 2006
                          Non-Argument Calendar             THOMAS K. KAHN
                                                                CLERK
                        ________________________

                  D. C. Docket No. 04-00610-CR-T-24-TBM

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                    versus

ANGELA SHARON HILL,

                                                       Defendant-Appellant.


                        ________________________

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

                                 (May 5, 2006)

Before DUBINA, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Angela Sharon Hill appeals her 60-month sentence for conspiracy to possess
with intent to distribute 100 kilograms or more marijuana, in violation of 21 U.S.C.

§§ 841, 846. On appeal, Hill argues that the district court erred by applying a two-

level enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1), and

by finding that she was not eligible for safety-valve relief. Hill further argues that

the government breached its plea agreement by arguing that she was ineligible for

safety-valve relief. She also contends that the district court erred under United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by making

judicial findings of fact. The government responds that Hill’s first two arguments

are foreclosed by the appeal waiver contained in her plea agreement.

      The issue of whether the government breached a plea agreement is a

question of law, to be reviewed de novo. United States v. Mahique, 150 F.3d

1330, 1332 (11th Cir. 1998). However, where no objection is raised in the district

court, we review for plain error. Id. We review de novo the question of whether a

“defendant effectively - that is knowingly and voluntarily - waived his right to

appeal his sentence.” United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th

Cir. 1997) (citation and quotation marks omitted).

      We first consider whether the government breached its plea agreement.

Because Hill did not object before the district court, our review is for plain error.

Under plain error review, there must be (1) an error, (2) that is plain, and (3) that



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affects substantial rights. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th

Cir. 2005). If these three prongs are met, we may exercise our discretion to notice

this error if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id. at 1329. In order for an error to be plain, it must be

obvious or clear under current law. United States v. Baker, 432 F.3d 1189, 1207

(11th Cir. 2005), petition for cert. filed, (Mar. 10, 2006) (05-9687).

       In United States v. Mahique, the government “agreed not to oppose

Mahique’s request to be sentenced under the safety-valve provision ‘if he is

eligible, and the Court makes appropriate findings regarding the criteria . . . .’”

Mahique, 150 F.3d at 1331. At sentencing, the government opposed the safety-

valve based on Mahique’s flight and alteration of his admissions. Id. We held that

the government did not breach the plea agreement. Id. at 1332.

              The government’s promise in the plea agreement not to oppose
       Mahique’s request to be sentenced under the safety-valve provision
       was conditioned on him being eligible for the provision and the
       district court finding that he met all criteria for application of the
       provision. The fifth criteria of the safety-valve provision requires that
       the defendant truthfully provide to the government all information and
       evidence he has regarding the offense. Because the government
       argued that Mahique was ineligible for the safety-valve provision
       since he did not meet the criteria--a condition of the plea
       agreement--there was no breach.

Id. (footnote omitted).

       Here, the government agreed that it would “not oppose the defendant’s

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request to the Court that it impose a sentence in accordance with the applicable

guidelines without regard to any statutory minimum sentence, pursuant to USSG

§5C1.2, if the Court finds that the defendant meets the criteria set forth in 18

U.S.C. § 3553(f).” Although the language in this plea agreement differs somewhat

from the agreement in Mahique, eligibility for the safety-valve was a condition of

the plea agreement. Therefore, under Mahique, any error would not be plain.

      We next consider whether the waiver of appeal provision in the plea

agreement is enforceable. “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.” Benitez-

Zapata, 131 F.3d at 1446 (emphasis in original).

      The district court explained the waiver during the plea colloquy and Hill

indicated her understanding of the explanation. However, the district court’s

explanation of the exception to the waiver for sentences above the statutory

maximum was arguably confusing because it described this exception as allowing

for an appeal of an illegal sentence, and described a sentence of more than the law

allows as an example. This suggests that the waiver would allow an appeal for a

broader range of sentences than just those above the statutory maximum.



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      Despite this deficiency, the waiver is enforceable because the record clearly

shows that Hill otherwise understood the full significance of the waiver. The

magistrate’s hypothetical of an illegal sentence, one that had a fine in excess of the

amount the law allowed, and his explanation that the waiver allowed the appeal of

“that type of illegal sentence,” provided some clarification as to what he meant by

an illegal sentence. At the plea colloquy Hill testified that the plea agreement was

read to her, that she understood it, and that the magistrate did not say anything

about it that confused her.

      Because Hill’s non-constitutional challenges to the weapons enhancement

and the safety-valve are not within the exceptions to the appeal waiver, we do not

reach the merits of these claims.

      However, Hill’s argument that the district court’s enhancement of her

sentence based upon the possession of a weapon violated Booker falls within an

exception to the waiver. Because Hill did not object before the district court, our

review is for plain error. A Booker constitutional error violates an individual’s

Sixth Amendment right to trial by jury where a judge enhances an individual’s

sentence based solely on judicially found facts pursuant to a mandatory Guidelines

system. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). There is no

constitutional error where a sentence is enhanced based on judicial fact-finding



                                           5
beyond the facts admitted by the defendant or found by the jury in a non-

mandatory system. United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.),

cert. denied, 125 S.Ct. 2935 (2005). Because the district court applied the

Guidelines as advisory, there was no error under Booker.

      AFFIRMED.




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