           Case: 17-14734   Date Filed: 05/29/2018   Page: 1 of 7


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14734
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:17-cr-10012-KMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

versus

MIGUEL BROCHE ORTIZ,

                                                         Defendant-Appellant.

                       ________________________

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

                              (May 29, 2018)

Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Miguel Ortiz appeals his 78-month sentence after pleading guilty

to one count of inducing aliens to enter the United States and one count of illegal

reentry by a deported alien. On appeal, Defendant argues that the district court

committed procedural error by applying a six-level enhancement under U.S.S.G.

§ 2L1.1(b)(2)(B) for the number of aliens smuggled into the United States. He

also argues that the court violated his Sixth Amendment rights by sentencing him

under 8 U.S.C. § 1326(b)(2) based on prior convictions that were not charged in

the indictment. The Government asserts that we should dismiss Defendant’s

appeal because his arguments are barred by his sentence appeal waiver. Because

we agree, we dismiss Defendant’s appeal.

I.    BACKGROUND

      In 2017, Defendant was charged in a multiple-count indictment with

(1) conspiring to induce aliens to enter the United States, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(iv)(I) (Count 1), (2) inducing aliens to enter the United States, 8

U.S.C. § 1324(a)(1)(A)(iv) and (v)(II) (Counts 2-32), (3) illegal reentry by a

deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2) (Count 33); and (4) failure

to obey an order of a federal law enforcement officer, 18 U.S.C. § 2237(a)(1)

(Count 34).

      Defendant subsequently pled guilty pursuant to a written plea agreement to

Count 6, which charged him with inducing an alien to enter the United States, in


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violation of § 1324(a)(1)(A)(iv), and Count 33, which charged him with illegal

reentry by a deported alien. In exchange, the Government agreed to dismiss the

remaining counts against Defendant. The plea agreement also stated that:

      The defendant is aware that Title 18, United States Code, Section
      3742 and Title 28, United States Code, Section 1291 afford the
      defendant the right to appeal the sentence imposed in this case.
      Acknowledging this, in exchange for the undertakings made by the
      United States in this plea agreement, the defendant hereby waives all
      rights conferred by Sections 3742 and 1291 to appeal any sentence
      imposed, including any restitution order, or to appeal the manner in
      which the sentence was imposed, unless the sentence exceeds the
      maximum permitted by statute or is the result of an upward departure
      and/or an upward variance from the advisory guideline range that the
      Court establishes at sentencing. The defendant further understands
      that nothing in this agreement shall affect the government’s right
      and/or duty to appeal as set forth in Title 18, United States Code,
      Section 3742(b) and Title 28, United States Code, Section 1291.
      However, if the United States appeals the defendant’s sentence
      pursuant to Section 3742(b) and 1291, the defendant shall be released
      from the above waiver of appellate rights. By signing this agreement,
      the defendant acknowledges that the defendant has discussed the
      appeal waiver set forth in this agreement with the defendant’s
      attorney.

Defendant and his attorney signed the plea agreement.

      At the plea colloquy, Defendant confirmed that he had the opportunity to

discuss the plea agreement with his attorney. Defendant acknowledged that the

plea agreement represented the entirety of his agreement with the Government.

The district court informed Defendant that in some cases he and the Government

would have the right to appeal any sentence imposed. The court then asked

Defendant if he understood that “by entering into this plea agreement and entering
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a plea of guilty, you will have waived or given up your right to appeal all or part of

this sentence.” Defendant confirmed that he understood. Defendant pled guilty

and the district court accepted his plea.

      The Presentence Investigation Report (PSR) assigned Defendant a base

offense level of 12, pursuant to U.S.S.G. § 2L1.1(a)(3). Defendant received a 6-

level enhancement under § 2L1.1(b)(2)(B) because he was involved in the

smuggling of 31 unlawful aliens into the United States. Defendant also received

three other enhancements not relevant to this appeal, resulting in an adjusted

offense level of 30. With a 3-level reduction for acceptance of responsibility,

Defendant’s total offense level was 27. Based on a total offense level of 27 and a

criminal history category of III, Defendant’s guideline range was 78 to 97 months’

imprisonment. Defendant objected to the six-level enhancement under

§ 2L1.1(b)(2)(B).

      At the sentencing hearing, Defendant argued that the six-level enhancement

for the number of aliens smuggled should not apply to him because he was

smuggled himself. The district court overruled the objection. The Government

recommended a sentence of 78 months’ imprisonment. Although Defendant

alleged that he was a passenger on the boat, the Government asserted that he took

over driving the boat and was responsible for leading law enforcement officers on

a chase that ultimately resulted in officers having to fire disabling shots. After


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considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Defendant

to 78 months’ imprisonment.

II.    DISCUSSION

       Defendant now appeals, arguing that the district court erred by applying a

six-level enhancement under § 2L1.1(b)(2)(B). Defendant also asserts that his

sentence under 8 U.S.C. § 1326(b)(2) violated his Sixth Amendment rights because

the prior convictions used to impose a higher sentence under § 1326(b)(2)—rather

than the one provided for under § 1326(a)—were not charged in the indictment.

The Government responds that the arguments raised by Defendant on appeal are

barred by his valid sentence appeal waiver.1

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

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). The enforceability of an appeal

waiver depends on whether it was entered into knowingly and voluntarily. United

States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). To demonstrate that an

appeal waiver is knowing and voluntary, the Government must show that (1) the

district court specifically questioned the defendant about the waiver during the plea

colloquy; or (2) the record makes clear that the defendant otherwise understood the

full significance of the waiver. Id. at 1351–52.



1
  Defendant did not file a reply brief in response to the Government’s argument that his appeal
be dismissed.
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       Here, Defendant waived his right to appeal his sentence by entering into a

knowing and voluntary appeal waiver. At the plea colloquy, the district court

explained that Defendant was giving up his right to appeal his sentence and

Defendant confirmed that he understood. Although the district court did not

specifically explain the exceptions to the sentence appeal waiver, the district court

made clear that Defendant would ordinarily be able to appeal his sentence but was

giving up that right by pleading guilty. If anything, the court’s failure to mention

the appeal waiver’s exceptions meant that Defendant potentially understood the

waiver to be more restrictive than it actually was. Given that he was willing to

plead guilty with a more restrictive waiver, one can only infer that he would not

have hesitated to plead guilty if the court had explained that the waiver was

actually less restrictive.

       But more importantly, it is clear from the record as a whole that Defendant

understood the full significance of the waiver. The exceptions to the appeal waiver

were outlined in the plea agreement, which was signed by Defendant and his

attorney. Moreover, Defendant acknowledged at the plea hearing that he had read

and discussed the plea agreement with his attorney. We therefore conclude that the

appeal waiver is enforceable because it was knowing and voluntary.

       Having concluded that the appeal waiver is valid, we must next determine

whether any exception to the appeal waiver is applicable. The appeal waiver


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provided that Defendant could appeal his sentence only if (1) the sentence

exceeded the maximum permitted by statute; (2) the sentence was the result of an

upward departure and/or an upward variance from the advisory guideline range; or

(3) if the Government appealed Defendant’s sentence. None of those exceptions

apply here.

       For starters, Defendant’s 78-month sentence was not an upward departure or

variance from the advisory guideline range of 78 to 97 months’ imprisonment.

Nor did the sentence exceed the statutory maximum of 20 years’ imprisonment

under § 1326(b)(2). And finally, the Government did not appeal Defendant’s

sentence.2

       For the foregoing reasons, Defendant’s appeal is DISMISSED.




2
  Defendant argues that it was unconstitutional to raise the statutory maximum sentence that he
was subject to under § 1326(a) to the statutory maximum sentence under § 1326(b)(2) based on
prior convictions that were not charged in the indictment. To the extent this argument fits within
the exception authorizing Defendant to appeal if he received a sentence above the statutory
maximum permitted by statute, his argument is without merit because it is foreclosed by binding
precedent. In Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998), the Supreme
Court held that a defendant’s prior convictions do not need to be alleged in the indictment to
sentence a defendant under § 1326(b)(2). We have held that we must follow Almendarez-Torres
until it is overruled by the Supreme Court. United States v. Harris, 741 F.3d 1245, 1250 (11th
Cir. 2014) (“[W]e are ‘bound to follow Almendarez-Torres unless and until the Supreme Court
overrules that decision.’” (quoting United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir.
2001)).


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