                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT         FILED
                    _____________________________ COURT OF APPEALS
                                               U.S.
                                                      ELEVENTH CIRCUIT
                                                        MARCH 21, 2012
                             No. 10-15831
                                                          JOHN LEY
                         Non-Argument Calendar
                                                           CLERK
                    _____________________________

                  Docket No. 8:07-cr-00220-RAL-TGW-2


UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,
     versus

RAUL MAGANA-HERRERA,

                                                       Defendant-Appellant.

              _________________________________________

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

                             (March 21, 2012)

Before EDMONDSON, MARCUS, and MARTIN, Circuit Judges.


PER CURIAM:
        Raul Magana-Herrera appeals his 240-month sentence -- imposed below the

applicable guideline range -- after pleading guilty to one count of conspiracy to

distribute and possess with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(viii)(Count 1).

        Briefly stated, Magana-Hedera argues that his sixth grade education

prevented him from knowingly and voluntarily entering into the portion of the plea

agreement that waived his right to appeal. If the appeal waiver is held invalid,

Magana-Herrera argues that the district court incorrectly applied a firearm

enhancement and a role in the offense enhancement. In addition, Magana-Herrera

argues that his 240-month sentence constitutes cruel and unusual punishment, in

violation of the Eighth Amendment, and that this claim is excepted from his

appeal waiver.*

        First, because the district court properly conducted a plea colloquy that

discussed the appeal waiver before accepting Magana-Herrera’s plea, the appeal

waiver was knowing, voluntary, and enforceable. Accordingly, all grounds for

    *
       Magana-Herrera briefly mentions that a plea agreement must be knowing and voluntary.
Magana-Herrera never asks that the conviction or entire plea agreement be overturned, but rather
focuses his arguments on obtaining a new sentence. This issue is abandoned. Even if preserved, the
facts show that the district court complied with Fed.R.Crim.P. 11, and that the plea was knowing and
voluntary. Moreover, even assuming that plain error occurred, the record does not establish a
“reasonable probability that, but for the error,” Magana-Herrera would not have pleaded guilty. See
United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340, 159 L.Ed.2d 157
(2004).

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appeal not excepted from the appeal waiver are waived, including Magana-

Herrera’s challenges to his offense level enhancements. Second, although

Magana-Herrera claims, for the first time on appeal, that he received ineffective

assistance of counsel at sentencing, we decline to consider that claim. Third,

Magana-Herrera’s sentence is not cruel and unusual, in violation of the Eighth

Amendment, because it is within the statutory limits; and it is not grossly

disproportionate to the offense he committed. For background, see United States

v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (Eighth amendment violation

requires showing sentence imposed is grossly disproportionate to offense

committed); United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.

2005) (defendant understood the full significance of appeal waiver); Williams v.

United States, 396 F.3d 1340, 1342 (11th Cir. 2005) (upholding waiver of

collateral challenge to ineffectiveness of counsel at sentencing); Massaro v.

United States, 538 U.S. 500, 123 S. Ct. 1690, 155 L.Ed.2d 714 (2003) (ineffective

assistance claims generally not considered on direct appeal).

      Accordingly, we, in the light of the appeal waiver, dismiss the appeal, in

part, and otherwise affirm.

      DISMISSED IN PART, AFFIRMED IN PART.




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