                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            November 30, 2005
                               No. 05-11818
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                    D. C. Docket No. 04-20203-CR-DMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

LORENZA E. FLINT,
a.k.a. Lo,

                                                           Defendant-Appellant.

                         ________________________

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

                            (November 30, 2005)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Lorenza E. Flint appeals his conviction and 120-month sentence for
conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and

50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

After review, we affirm Flint’s conviction and dismiss his appeal of his sentence.

                                     I. FACTS

      Flint pled guilty pursuant to a written plea agreement. His agreement

specified that he agreed to plead guilty to conspiracy to possess with intent to

distribute 5 kilograms or more of cocaine and the court must impose a minimum

10-year term of imprisonment, as follows:

              1.    The defendant agrees to plead guilty to the indictment,
      which count charges the defendant with a conspiracy to possess with
      the intent to distribute 5 kilograms, or more of cocaine and 50 grams
      or more of cocaine base, commonly known as “crack,” in violation of
      Title 21, United States Code, Sections 841(a)(1), 846(b)(1)(A)(iii).
              ....
              3.    The defendant also understands and acknowledges that
      the court must impose a minimum term of ten years of imprisonment
      and may impose a statutory maximum term of imprisonment of up to
      life, followed by a term of supervised release of at least 5 years and up
      to life. In addition to a term of imprisonment and supervised release,
      the court may impose a fine of up to $4,000,000.

It is undisputed that 5 kilograms or more of cocaine triggers a ten-year mandatory

minimum sentence. See 21 U.S.C. 841(b)(1)(A)(ii).

      The agreement also contained a sentence appeal waiver, which provided that

Flint waived his right to appeal “any sentence imposed . . . or to appeal the manner

in which the sentence was imposed, unless the sentence exceeds the maximum

                                           2
permitted by statute or is the result of an upward departure from the guideline

range . . . .” His appeal waiver also stated that Flint waived claims that the

Sentencing Guidelines were unconstitutional or that facts found by the sentencing

court were not admitted by him or found by a jury, as follows:

      This appeal waiver includes a waiver of the right to appeal the
      sentence on the ground that the sentencing guidelines are in any
      respect unconstitutional, or on the grounds that any fact found by the
      Court at sentencing was not alleged in the indictment, admitted by the
      defendant, found by a jury, or found beyond a reasonable doubt.

      At the change-of-plea hearing, Flint indicated that he had read the

indictment and plea agreement, discussed them with his counsel, and was satisfied

with counsel’s representation. He then acknowledged that he understood that: (1)

he was pleading guilty to conspiracy to possess with intent to distribute 5

kilograms or more of cocaine and 50 grams or more of cocaine base; (2) the court

must impose a mandatory minimum sentence of ten years’ imprisonment; and (3)

he had a right to appeal his sentence, but was waiving that right by agreeing to the

terms of the plea agreement.

      Six months after he pled guilty, but prior to being sentenced, Flint filed a

motion to set aside his plea agreement and to proceed to trial. Flint’s motion

claimed that he had not been given an adequate opportunity to review the charges

and the evidence against him, and that therefore he did not have the material



                                           3
information necessary to make an informed decision to plead guilty. At a hearing

on the motion, Flint also asserted that he had desired to withdraw his plea soon

after the plea hearing. The government responded that: (1) it had already tried

Flint’s codefendants and would now have to retry the conspiracy case separately

against Flint if the motion was granted; (2) the government was unsure whether

Ross, a key witness and Flint’s son, now would be willing to testify against his

father; (3) Flint had waited six months after his guilty plea, until after the PSI had

been prepared, to move to withdraw the plea; (4) the government was in the

process of preparing for an upcoming trial that imposed significant time constraints

on the same agents and assistant United States Attorneys involved in Flint’s case;

and (5) the government would need additional time to file a superseding indictment

and “work up” the case against Flint. The district court denied Flint’s motion,

finding his plea was knowing and voluntary, as follows:

      This defendant chose to plead guilty. There was a full plea
      colloquy. There was no indication he did not understand . . . at
      the time of the plea colloquy.
             I find it was a knowing and voluntary plea. I don’t agree
      that he was not aware of the facts giving rise to this case . . . .
             He did choose to plead guilty. He chose to waive his
      appellate rights. And I believe it is a circumstance of his
      having a change of heart. I don’t see any other reason for a –
      for him to change the plea. My only hesitation is I do have a
      belief [that] people ought to get their day in Court. However he
      did negotiate his plea agreement. I think the Government is in a
      different posture now in trying to present a case. I believe that

                                        4
       judicial resources would be wasted if we tried this case again.
       The Government would be prejudiced both in terms of time and
       money.
              But I think the greatest prejudice is in their ability to
       present the case. Without some reason other than he’s had a
       change of heart, I don’t think there’s a basis to withdraw the
       plea.

The district court sentenced Flint to 120 months’ imprisonment, which was the

mandatory minimum statutory sentence, under 21 U.S.C. § 841(b)(1)(A)(ii), for

conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and

50 grams or more of cocaine base. This appeal followed.

                                      II. DISCUSSION

       On appeal, Flint challenges the district court’s denial of his motion to

withdraw his guilty plea and also argues that the district court erred in imposing a

ten-year mandatory minimum sentence. After review, we affirm Flint’s conviction

and dismiss his appeal of his sentence based on Flint’s valid sentence appeal

waiver.1

       A.      Motion to Withdraw Guilty Plea

       Flint contends that the district court’s denial of his motion to withdraw his



       1
         We review a district court’s denial of a motion to withdraw a guilty plea for abuse of
discretion and will reverse only if the district court’s decision is arbitrary and unreasonable.
United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002). Whether a defendant has
knowingly and voluntarily waived his right to appeal his sentence is a question of law that we
review de novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993).

                                                 5
guilty plea was arbitrary because the government offered nothing but “conclusory

assertions” to support a denial. Specifically, Flint points out that he did not wait

six months to seek to withdraw his plea, but that he had wished to withdraw it on

the day after it was entered.

      Rule 11 provides that “[a] defendant may withdraw a plea of guilty. . . after

the court accepts the plea but before it imposes sentence if . . . the defendant can

show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.

11(d)(2)(B). When deciding whether to grant a motion to withdraw a guilty plea,

“the district court may consider the totality of the circumstances surrounding the

plea . . . includ[ing] (1) whether close assistance of counsel was available; (2)

whether the plea was knowing and voluntary; (3) whether judicial resources would

be conserved; and (4) whether the government would be prejudiced if the

defendant were allowed to withdraw his plea.” United States v. Buckles, 843 F.2d

469, 471-72 (11th Cir. 1988) (internal citations omitted).

      The district court did not abuse its discretion in determining, based on the

totality of the circumstances, that Flint failed to provide a fair and just reason for

withdrawing his plea. First, Flint had the close assistance of counsel regarding his

plea because he: (1) was assisted by counsel during the plea hearing; (2)

acknowledged that he had discussed the case with his counsel; and (3) stated that



                                            6
he was satisfied with his counsel’s representation. Second, Flint’s plea was

knowing and voluntary given that he: (1) had read the indictment and understood

the charge against him; (2) had read the plea agreement and understood it; (3) had

not been forced to plead guilty; (4) understood that, by pleading guilty, he was

giving up several rights; and (5) heard the government’s proffer of the case against

him.

       Although Flint alleged that he was taking blood pressure medication at the

time of his plea, Flint does not state what effect the medication had on him, and

there is no evidence in the record that Flint was not fully competent during his

plea. In fact, Flint stated at the plea hearing that he was not currently “under the

influence” of any drug. Further, although Flint claimed that he was not fully

informed of the charges and evidence against him, he indicated at the plea hearing

that he had read the indictment, understood that he was pleading guilty to

conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and

50 grams or more of crack cocaine, knew the penalties for the crime, and had heard

the government’s proffer of evidence against him.

       Third, as the district court found, judicial resources would be conserved by

denying Flint’s motion because the government had tried Flint’s codefendants

three months before and would now have to bear the expense of a separate trial.



                                           7
Although Flint claims that he wished to withdraw his plea one day after he entered

it, he does not explain why he then waited six months, until right before

sentencing, to file the motion with the district court.2 Given the totality of these

circumstances, we cannot say the district court’s decision to deny Flint’s motion to

withdraw his plea was arbitrary or unreasonable.3

       B.      Sentencing Appeal

       Regarding his sentence, Flint argues that the government stipulated in the

plea agreement that Flint was responsible only for 500 grams to 2 kilograms of

cocaine. Based on this alleged stipulation, Flint contends that the district court

erred by imposing a ten-year mandatory minimum sentence based on the 5-

kilogram amount that was actually charged in the indictment and to which he pled

guilty. Flint argues that the district court was obligated to enforce the stipulation to

the lower drug quantity in determining his mandatory minimum sentence, which

should have been 60 months under 21 U.S.C. § 841(b)(1)(B)(ii). Alternatively,

       2
         Although Flint contends that he told his plea counsel of his desire to withdraw his plea
the day after the plea hearing and then told the probation officer approximately five weeks after
the plea hearing, Flint did not notify the district court of his alleged desire until just before the
sentencing hearing.
       3
          The district court also found that the government would be prejudiced by Flint’s
withdrawal of his plea because, among other things, Ross, Flint’s son and a key witness, may
now be unwilling to testify against his father. Because the defendant has not satisfied the other
Buckles factors, we need not rely on this factor. See Buckles, 843 F.2d at 472 n.3 & 474; see
also United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987) (stating that, where
defendant has failed to satisfy first two factors, the court need not give considerable weight to
the last two factors).

                                                  8
Flint argues that, even if the district court was not obligated to enforce the

government’s stipulation, the court erred under United States v. Booker, 543 U.S.

___, 125 S. Ct. 738 (2005), by engaging in judicial fact-finding of the amount of

cocaine. The government responds that Flint’s knowing and voluntary sentence

appeal waiver precludes him from raising all of these issues on appeal.

       First, Flint’s asserted basis for circumventing his appeal waiver is not

supported by the record. The government did not stipulate as to drug quantity.

Rather, the plea agreement states that the government will recommend a lesser

drug quantity, but that this is not binding on the court.4 Thus, this alleged claim

provides no basis for avoiding the sentence appeal waiver. We also conclude that

Flint’s appeal waiver is valid and binding on Flint.

       In his written plea agreement, Flint waived his right to appeal his sentence

unless the sentence exceeded the statutory maximum or was the result of an



       4
          Specifically, paragraph 11 of the plea agreement states:
                The United States and the defendant agree that, although not binding on
        the probation office or the court, they will jointly recommend that the court make
        the following findings and conclusions as to the sentence to be imposed:
                (a). Quantity of narcotics: That the quantity of controlled substance
        involved in the offense, for purpose of Section 2D1.1(a) and (c) of the Sentencing
        Guidelines and [sic] is between at least 500 grams but less than 2 kilograms
        cocaine, that would result in a base offense level of 26.
The government explained that this provision was included in the plea agreement in the event
Flint qualified for a substantial assistance downward departure and was no longer subject to the
statutory minimum sentence. However, Flint did not cooperate with the government and thus
did not qualify for such a departure.

                                                9
upward departure. In addition, the sentence appeal waiver precluded Flint from

raising Apprendi/Booker claims.        Appeal waivers are generally enforceable

when they are knowingly and voluntarily entered. See United States v. Buchanan,

131 F.3d 1005, 1008 (11 th Cir. 1997). We review do novo the knowing and

voluntary nature of the waiver. United States v. Bushert, 997 F.2d 1343, 1350

(11 th Cir. 1993). We will enforce a sentence appeal waiver provision contained in

a plea agreement if the government demonstrates either that (1) the district court

specifically questioned the defendant about the waiver during the plea colloquy, or

(2) “it is manifestly clear from the record that the defendant otherwise understood

the full significance of the waiver.” Id. at 1351. In addition, we have held that

“the right to appeal a sentence based on Apprendi/Booker grounds can be waived

in a plea agreement,” and “[b]road waiver language covers those grounds of

appeal.” United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.), cert. denied,

126 S. Ct. 416 (2005).

      Flint’s sentence appeal waiver is valid and enforceable. The district court

specifically questioned Flint about the sentence appeal waiver during the plea

colloquy, and Flint acknowledged that he understood that he was relinquishing his

right to appeal his sentence except under limited circumstances. Furthermore, the

sentence appeal waiver contained an express waiver of constitutional challenges to



                                          10
his sentence, including the grounds that any fact found by the court at sentencing

was not admitted by him or found by a jury.

      Flint argues that his appeal falls within the upward departure exception to

the sentence appeal waiver. We disagree. The district court’s imposition of the

120-month sentence did not constitute an upward departure from the guidelines

range. Rather, it was the applicable guidelines sentence.

      Pursuant to U.S.S.G. § 5G1.1, where the statutory minimum sentence

exceeds the guidelines range, the statutory minimum is the applicable guidelines

sentence, as follows:

      Where a statutorily required minimum sentence is greater than the
      maximum of the applicable guideline range, the statutorily required
      minimum sentence shall be the guideline sentence.

U.S.S.G. § 5G1.1(b). Flint’s calculated guidelines range was 78 to 97 months’

imprisonment based on his total offense level and criminal history category.

Because Flint pled guilty to an indictment that expressly charged the drug quantity

of 5 kilograms or more of cocaine, his statutory minimum sentence was 120

months’ imprisonment. Pursuant to § 5G1.1(b), because Flint’s statutory minimum

sentence of 120 months was greater than his guidelines range maximum of 97

months, his guidelines sentence was 120 months’ imprisonment. Furthermore,

only a sentence exceeding 120 months’ imprisonment would have been an upward



                                         11
departure. See U.S.S.G. § 5G1.1 cmt. (explaining that “[i]f the applicable

guideline range is 41-51 months and there is a statutorily required minimum

sentence of 60 months, the sentence required by the guidelines under subsection

(b) is 60 months; a sentence of more than 60 months would be a guideline

departure”); see also United States v. Head, 178 F.3d 1205, 1207-08 (11 th Cir.

1999) (holding that sentencing range set by U.S.S.G. § 5G1.1(b) is the appropriate

point of departure and not the lower alternative guideline range absent a statutory

minimum). Thus, the district court did not upwardly depart from the guidelines in

imposing the 120-month sentence.

       Because Flint knowingly and voluntarily waived his right to appeal his

sentence on the grounds asserted in his brief, we dismiss his appeal of his

sentence.5 Accordingly, we affirm Flint’s conviction and dismiss the appeal of his

sentence.

       AFFIRMED IN PART, DISMISSED IN PART.


       5
         Perhaps in another attempt to circumvent his sentence appeal waiver, Flint claims on
appeal that the government materially breached the plea agreement when it argued for the ten-
year mandatory minimum sentence. We note that Flint did not argue in the district court that the
government had breached the plea agreement and has never sought to withdraw his guilty plea
on this basis. Indeed, Flint does not go so far as to explicitly argue on appeal that the alleged
breach releases him from his appeal waiver. In any event, to the extent this argument can be
inferred from his brief, it ignores the provisions in the plea agreement that state: (1) that Flint
agrees to plead guilty to an offense involving 5 kilograms or more of cocaine; (2) that the drug
quantity recommendation is only for purposes of calculating Flint’s base offense level under
U.S.S.G. § 2D1.1; and (3) that “[t]he defendant also understands and acknowledges that the
court must impose a minimum term of ten years of imprisonment . . . .”

                                                12
