                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 08-15720         ELEVENTH CIRCUIT
                                                       APRIL 12, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                          CLERK

                D. C. Docket No. 08-00069-CR-ORL-22-KRS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DAVID RALPH CONDON,

                                                          Defendant-Appellant.


                        ________________________

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

                               (April 12, 2010)

Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

     David Ralph Condon appeals his 37-month sentence for conspiracy to
defraud the United States by impeding the collection of income tax, in violation of

18 U.S.C. § 371. In his plea agreement, Condon admitted that the government

could prove beyond a reasonable doubt that the United States suffered

approximately $114,000 of tax loss for the years 2001-2005. He further admitted

that the government could prove “other facts” beyond a reasonable doubt. In the

agreement, the government also reserved the right to present additional evidence.

The plea agreement also included a sentence appeal waiver in which Condon

waived the right to appeal his sentence on any grounds except (a) the ground that

his sentence exceeded the applicable Guidelines range as determined by the district

court pursuant to the Sentencing Guidelines; (b) the ground that his sentence

exceeded the statutory maximum penalty; or (c) the ground that his sentence

violated the Eighth Amendment. In the waiver provision, Condon specifically

waived the right to challenge his sentence on the ground that the district court erred

in determining the applicable Guidelines range. The agreement released Condon

from his waiver if the government exercised its right to appeal the sentencing

determination.

      When calculating Condon’s Guidelines range, the district court, with the

government’s support, held Condon accountable for approximately $300,000 in

losses, counting both the amount of unpaid taxes and the related penalties and



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interest. Condon objected to being held accountable for the greater amount, but

did not assert that the government was in breach of the plea agreement.

                                             I.

       On appeal, Condon argues that he only admitted an amount of loss of

approximately $114,000, but was held accountable for almost $300,000. He

maintains that the government was responsible for including the amount of

penalties and interest in the amount of loss in the plea agreement and asserts that

he is entitled to specific performance of the plea agreement as written. Condon

argues that his sentence increase violated the Sixth Amendment because it was

based on facts relating to the loss calculation that the government did not prove to

a jury and he did not admit. He also argues that his restitution order was erroneous

because it was based on an amount greater than the amount to which he agreed in

the plea agreement. Thus, Condon asserts that his sentence was procedurally

unreasonable.

       Allegations that the government breached the plea agreement that were not

raised before the district court are reviewed for plain error. United States v.

Thayer, 204 F.3d 1352, 1356 (11th Cir. 2000). Plain error requires the defendant

show: (1) an error, (2) that is plain, (3) that affects substantial rights, and (4) that

seriously affects the fairness, integrity, or public reputation of judicial proceedings.



                                             3
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Taylor, 77 F.3d 368, 370 (11th Cir.1996) (citing Santobello v. New York,

404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427 (1971)). Whether a plea

agreement was violated is determined according to the defendant’s reasonable

understanding when he entered the plea. United States v. Horsfall, 552 F.3d 1275,

1281 (11th Cir. 2008), cert. denied, 129 S. Ct. 2034 (2009). To honor a plea

agreement, the government may be required to curtail the otherwise legitimate

scope of its advocacy. See Taylor, 77 F.3d at 370-71. The government can breach

a plea agreement by making statements regarding the PSI that are inconsistent with

the plea agreement. Id. at 370.

      A sentence appeal waiver is enforceable when the government can show that

either: (1) the district court specifically questioned the defendant about the rights

he has waived during the plea colloquy; or (2) the record clearly shows that the

defendant otherwise understood the full significance of waiving his rights. United

States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005). An appeal waiver

must be made knowingly and voluntarily. United States v. Bushert, 997 F.2d

1343, 1350 (11th Cir 1993). For a waiver to be knowing and voluntary, the district



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court generally must have discussed the sentence appeal waiver with the defendant

during the Rule 11 hearing. Id. at 1350-51.

      Condon’s plea is governed by an agreement that excludes any appeal of his

sentence except on specified grounds. Condon does not argue his waiver was

unknowing or involuntary. Moreover, the record indicates that the district court

specifically questioned Condon about the effect of his appeal waiver during the

plea colloquy. Therefore, Condon’s appeal waiver is enforceable unless he can

establish grounds for invalidating the plea agreement.

      Condon cannot show any error, much less plain error, in his contention that

the government breached the plea agreement. Condon argues, in effect, that

because the factual basis for the plea stated that the amount of income taxes owed

for the years 2001-2005 was approximately $114,000, the loss calculation for

Guidelines purposes was necessarily limited to that amount. The agreement,

however, contains no stipulation on the government’s part as to the loss amount for

sentencing purposes. It is true that the government supported the statement in the

PSI that the loss amount for the Guidelines calculation was approximately

$300,000, but the government’s position with respect to the calculation is not at

odds with the plea agreement. In United States v. Boatner, 966 F.2d 1575, 1578-

79 (11th Cir. 1992), this Court held that the government breached the plea



                                          5
agreement by introducing evidence through the PSI showing that the defendant had

been involved with almost three kilograms of cocaine, after stipulating in the plea

agreement the defendant was only culpable for distributing two ounces of cocaine.

Unlike the situation in Boatner, the government did not introduce evidence of

further substantive conduct on Condon’s part. Instead, it simply supported the

Probation Office’s finding that the proper loss amount for sentencing purposes for

the agreed upon amount of unpaid taxes included penalties and interest. Because

that position is not at odds with the plea agreement, the government did not breach

the plea agreement. Therefore, the plea agreement and the sentencing waiver

contained therein are enforceable.

       Because the grounds on which Condon challenges his sentence are not

contained in the enumerated exceptions in the plea agreement, he has waived those

arguments.1

                                               II.

       Condon argues that he is entitled to credit for time served before sentencing.

He acknowledges that he was required to exhaust administrative remedies and that

the record does not demonstrate that he did so.



       1
          We note that the plea agreement contains a specific waiver of the argument that the
district court improperly calculated the applicable Guidelines range.


                                                6
      The district court lacks jurisdiction to address proper calculation of credit for

time served until a prisoner exhausts administrative remedies. United States v.

Herrera, 931 F.2d 761, 764-65 (11th Cir. 1991). Because the record does not show

that Condon exhausted his administrative remedies in this regard, the district court

lacked jurisdiction to address what credit Condon was entitled to receive.

      After careful review of the record and the parties’ briefs, we discern no

error. Accordingly, we affirm Condon’s sentence.

AFFIRMED.




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