                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________  ELEVENTH CIRCUIT
                                                                 JUNE 13, 2005
                                 No. 04-12910                  THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                    D.C. Docket No. 03-00437-CR-T-17-MAP

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

      versus

ARNAL ALBERTO HENRY-HOWARD,

                                                   Defendant-Appellant.
                         __________________________

                   Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________
                                (June 13, 2005)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Pursuant to a plea agreement, appellant pled guilty to possession with intent

to distribute five kilograms or more of cocaine, in violation of 46 U.S.C. app.
§ 1903(a), and the court sentenced him to 108 months’ imprisonment. He now

appeals his sentence, challenging it on the following grounds:

       1) the district court infringed his Fifth and Sixth Amendment rights by

setting his offense level at 38, based on the quantity of drugs involved in the

offense. According to him, because the indictment charged only that more than 5

kilograms of cocaine were involved in the offense, the court was precluded from

finding that approximately 2,038 kilograms were involved.

       2) the Sentencing Guidelines are unconstitutional, under Blakely v.

Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).1 Thus, his

sentence must be vacated and his case remanded for resentencing.

       3) the court abused its discretion by denying his requests for a minor-role

reduction of his offense level, and an additional two-level downward departure

from that level for substantial assistance.

       The Government responds to this by pointing out that the plea agreement

contains an appeal waiver; therefore, appellant has waived the right to appeal on

the above grounds. We agree.



       1
        Because appellant filed his brief before the Supreme Court handed down its decision in
United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (which applies
Blakely’s rationale to the Guidelines), he relies on Blakely, rather than Booker. We refer to his
Blakely claim Blakely/Booker.

                                               2
      “[T]he determination of whether a defendant effectively–that is 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). We will enforce a sentence-appeal waiver provision contained in a plea

agreement where the government demonstrates either that: “(1) the district court

specifically questioned the defendant about the waiver during the plea colloquy[;]

or (2) the record clearly shows that the defendant otherwise understood the full

significance of the waiver.” United States v. Benitez-Zapata, 131 F.3d 1444, 1446

(11th Cir. 1997). “[O]ne of the keys to enforcing a sentence appeal waiver is that

the defendant knew he had a right to appeal his sentence and that he was giving up

that right.” Bushert, 997 F.2d at 1350 (citation and internal quotations omitted).

      “[T]he right to appeal a sentence based on [Blakely/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. 2005). In

Rubbo, we held that, absent any indication that the parties to a plea agreement

intended to alter the ordinary meaning of the term “statutory maximum,” the

exception for “a sentence above the statutory maximum” does not apply to an

argument based on the constitutional holdings of Blakely/Booker. See Rubbo, 396

F.3d at 1334-35. Most recently, in United States v. Grinard-Henry, 399 F.3d

                                         3
1294, 1296-97 (11th Cir. 2005), cert. denied, (U.S. May 16, 2005) (No. 04-9566),

we held that the exception for “a sentence in violation of the law apart from the

guidelines” does not apply to an argument that the Guidelines are unconstitutional

under Blakely/Booker because such a claim “directly involves the application of

the sentencing guidelines.”

      The sentence-appeal waiver in this case is enforceable because, during the

plea colloquy, the magistrate judge specifically questioned appellant about the

waiver, and he indicated that he fully understood its significance. Additionally,

none of the grounds upon which he challenges his sentence is covered by the

enumerated exceptions to the general appeal waiver. Accordingly, this appeal is

due to be dismissed. However, the written order of judgment and commitment

erroneously indicates that appellant was adjudged guilty of conspiracy to possess

with intent to distribute five kilograms or more of cocaine. Due to this clerical

error, we remand the case to the district court for the limited purpose of correcting

it. See Fed. R. Crim. P. 36.

      SO ORDERED.




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