                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                 No. 05-10954                 ELEVENTH CIRCUIT
                                                              DECEMBER 15, 2005
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                           ________________________                 CLERK

                  D.C. Docket No. 04-00067-CR-FTM-29-DNF

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

      versus

MATTHEW POTEET,
                                                   Defendant-Appellant.
                         __________________________

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

                                (December 15, 2005)

Before DUBINA, HULL and RONEY, Circuit Judges.

PER CURIAM:

      Appellant Matthew Poteet appeals his conviction and sentence for

possession with intent to distribute 500 grams or more of cocaine, 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(ii)(II), based on his plea of guilty. Court appointed counsel,
Charles E. Lykes, Jr., has moved to withdraw from further representation of the

appellant and has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967). Poteet was given notice of counsel’s motion

to withdraw and the Anders brief, but has not filed a response. The motion to

withdraw is granted, and Poteet’s conviction and sentence are affirmed.

      In his written guilty plea to a one count indictment, Poteet waived the right

to appeal his sentence “directly or collaterally, on the ground that the sentencing

guidelines are in any respect unconstitutional, on the grounds that any fact found

by the Court for sentencing was not alleged in the indictment, was not admitted by

the defendant, was not found by a jury, was not found beyond a reasonable doubt,

or was found based upon evidence not admissible under the Federal Rules of

Evidence, and on any other ground, including the applicability of the ‘safety

valve’ provisions contained in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, except

in the following situations: (a) an upward departure by the sentencing judge; (b) a

sentence above the statutory maximum; or (c) a sentence in violation of other law

apart from the sentencing guidelines.” The plea agreement contained a factual

basis that stated that Poteet was going to sell a half-kilogram of cocaine to a

confidential informant for $13,600.




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      At the Federal Rules of Criminal Procedure Rule 11 guilty plea hearing

before a magistrate judge, Poteet stated that he was satisfied with his

representation. The record supports the district court’s finding that the plea was

knowing and voluntary. Poteet objected to (1) his criminal history category,

arguing that it significantly over-represented the seriousness of his past criminal

conduct and requested a downward departure to a criminal history category of I,

and (2) the failure to include a downward departure due to his family

responsibilities pursuant to § 5H1.6. The district court recognized it had the

authority to depart downward for over-representation of criminal history, but

found, however, that Poteet’s criminal history was not over-represented such as to

require a criminal history of I. As to Poteet’s argument for a downward departure

based on family responsibilities and § 5H1.6, the district court found that Poteet

created the danger to his family by engaging in drug dealing activities, § 5H1.6 did

not apply, and, even if it did apply, it would not allow Poteet to be sentenced

below the statutory minimum, and the court therefore denied the downward

departure. The district court sentenced Poteet to 60 months’ imprisonment and

four years of supervised release.

      The Anders brief properly indicates there are no arguable issues. Any

argument that Poteet’s sentence violated Apprendi v. New Jersey, 530 U.S. 466

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(2000) and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), is

foreclosed by the appeal waiver provision of Poteet’s plea agreement. This issue

has no arguable merit.

      This Court has held that broad sentence-appeal waiver provision language,

such as the provision appearing in Poteet’s plea agreement, is enforceable so long

as the defendant enters into the agreement knowingly, intelligently, and

voluntarily. See United States v. Grinnard-Henry, 399 F.3d 1294, 1296 (11th Cir.

2005). Broad waiver language also “covers” Apprendi and Booker grounds.

United States v. Frye, 402 F.3d 1123, 1129 (11th Cir. 2005) (quoting United

States v. Grinnard-Henry, 399 F.3d 1294,1296(11th Cir. 2005); United States v.

Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005)).

      Poteet pled guilty to violating 21 U.S.C. § 841(b)(1)(B), which carries a

statutory minimum sentence of five years’ imprisonment. See 21 U.S.C.

§ 841(b)(1)(B). Neither of the exceptions to the statutory minimum apply in this

case: (1) the government did not file a § 5K1.1 motion, as Poteet had stopped

cooperating with the government; and (2) Poteet cannot meet the requirements of

the “safety valve” provision, as he has more than one criminal history point.

Therefore, the district court had no discretion to depart below the statutory

minimum of five years’ imprisonment. See United States v. Simpson, 228 F.3d

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1294, 1303(11th Cir. 1000)(noting that district court has “no discretion to depart

downward from the relevant statutory mandatory minimum sentences”).

      An independent review of the entire record shows that the magistrate judge

covered all the required disclosures in Rule 11 and addressed each of the “core

concerns” before accepting Poteet’s plea by determining that he was not coerced

into pleading guilty, by explaining the charges, and by explaining the rights he

relinquished by pleading guilty. United States v. Monroe, 353 F.3d 1346, 1354

(11th Cir. 2003) (“This Court has upheld plea colloquies that fail to address an

item expressly required by Rule 11 so long as the overall plea colloquy adequately

addresses these three core concerns.”); United States v. Bell, 776 F.2d 965, 968

(11th Cir. 1985) (addressing the three “core concerns” of a guilty plea: (1) the

guilty plea is voluntary; (2) the defendant understands the nature of the charges;

and (3) the defendant understands the consequences of his plea.). Independent

review reveals no jurisdictional errors that might have occurred prior to the entry

of the plea. See United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984) (noting

that the entry of a guilty plea waives objection to all non-jurisdictional errors).

      Since there is no arguably meritorious basis for challenging Poteet’s

conviction or sentence, counsel’s MOTION TO WITHDRAW IS GRANTED

and Poteet’s CONVICTION AND SENTENCE ARE AFFIRMED.

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