                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             December 22, 2006
                              No. 06-11887
                                                           THOMAS K. KAHN
                          Non-Argument Calendar                  CLERK
                        ________________________

                D. C. Docket No. 05-00084-CR-FTM-33-SPC

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

EDVARD BAPTISTE,

                                                         Defendant-Appellant.


                        ________________________

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

                            (December 22, 2006)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Edvard Baptiste appeals his sentence imposed in accordance with a written
plea agreement, in which the government agreed not to oppose a request for a

sentence at the low end of the advisory Guidelines range. Baptiste argues that the

government breached the plea agreement when it did not urge a low-end sentence.

Baptiste also makes arguments about his sentence that are barred by his valid

appeal waiver. We affirm in part and dismiss in part.

                               I. BACKGROUND

      On November 28, 2005, Baptiste pleaded guilty to possession with intent to

distribute five grams or more of cocaine base. 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(iii). In a written plea agreement, the government agreed to

recommend the maximum reduction for acceptance of responsibility and not to

oppose Baptiste’s request for a sentence at the low end of the applicable

Guidelines range. The advisory Guidelines range was 37 to 46 months.

      In January 2006, while Baptiste was released on bond pending sentencing,

Baptiste allegedly battered his pregnant ex-girlfriend. At sentencing, when the

government stated that it would not object to a request by Baptiste that he be

sentenced towards the low end of the Guidelines range, the district court asked,

“How about beating up a pregnant girlfriend during the time that he’s out?” The

government replied that no charges had been filed relating to those allegations and

the low-end recommendation was based on Baptiste’s cooperation and lack of

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prior drug convictions. The court imposed a sentence of 46 months.

                        II. STANDARDS OF REVIEW

      Because Baptiste did not raise his argument about the plea agreement in the

district court, we review only for plain error. United States v. Walker, 59 F.3d

1196, 1198 (11th Cir. 1995). We review de novo the validity of Baptiste’s appeal

waiver. United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).

                                III. DISCUSSION

      Baptiste argues that he is entitled to resentencing because the government

breached the plea agreement. Baptiste also makes arguments about the legality

and reasonableness of his sentence, which the government argues are foreclosed

because Baptiste agreed to a valid appeal waiver. We address these issues in turn.

              A. The Government Did Not Breach the Plea Agreement.

      Baptiste makes two arguments about the plea agreement. First, he argues

that the recommendation of the government at sentencing that Baptiste receive a

sentence “towards” the low end of the Guidelines range breached the agreement to

recommend a sentence “at” the low end of the range. Second, Baptiste argues that

the government breached the agreement when it “attempt[ed] to distance itself

from the recommendation” after the district court asked about the battery

allegation.

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      Both of Baptiste’s arguments fail. First, the plea agreement required only

that the government not oppose a low-end recommendation by the defense. When

the government made the “towards” statement, Baptiste had not yet requested a

low-end sentence, and at no point did the government oppose Baptiste’s eventual

request for a sentence at the low end of the Guidelines range. Second, the written

plea agreement stated that the low-end recommendation was conditional: “In the

event that no adverse information is received suggesting such a recommendation

to be unwarranted, the United States will not oppose the defendant’s request to the

Court that the defendant receive a sentence at the low end of the applicable

guideline range, as calculated by the Court.” Although we agree with the

government that the new information regarding the battery allegations suggested

that the recommendation was unwarranted, the government, in its response to the

question about the battery allegations, defended the recommendation. The

government did not breach its agreement with Baptiste.

    B. Baptiste’s Remaining Arguments are Barred by a Valid Appeal Waiver.

      Baptiste argues that his sentence was illegal and unreasonable, but we will

not consider these arguments because they are barred by an enforceable appeal

waiver. None of the exceptions to the waiver contained in the written plea

agreement apply. The district court concluded after specific questioning during

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the plea colloquy that the appeal waiver was knowing and voluntary. See United

States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). We agree that

Baptiste has waived his right to appeal his sentence on the grounds raised here.

                               IV. CONCLUSION

      Baptiste’s appeal is DISMISSED in part, and his sentence is AFFIRMED.




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