                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                         NOVEMBER 14, 2005
                             No. 05-11324
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                   D. C. Docket No. 04-14031-CR-KAM

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                  versus

CHARLES NORMAN BAUR, JR.,
a.k.a. Norman Baur,
a.k.a. Edward Baur,

                                                         Defendant-Appellant.


                       ________________________

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

                            (November 14, 2005)

Before MARCUS, WILSON and RONEY, Circuit Judges.

PER CURIAM:
      In this direct appeal after a guilty plea, appointed counsel’s motion to

withdraw is granted and the defendant’s conviction and sentence are affirmed.

      Indicted on six counts of bank fraud, in violation of 18 U.S.C. § 1344,

defendant Charles Norman Baur, Jr. pled guilty to two counts in exchange for the

government’s promise to dismiss the remaining counts. Baur and the government

entered into a written plea agreement in which the government agreed to

recommend at sentencing a three-level reduction for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1. The plea agreement also noted: that Baur’s sentence

would be calculated using the Federal Sentencing Guidelines, that the court had

discretion to depart from the guideline range under certain circumstances, that Baur

would not be able to withdraw his plea solely as a result of the sentence imposed,

that Baur faced a 30-year statutory maximum and $1 million fine on each count,

and that Baur’s base offense level under the Sentencing Guidelines was 24 as a

result of Baur having derived more than $1 million in gross receipts from one or

more financial institutions. Because no single financial institution was ever

endangered for more than $1 million in losses, however, the parties agreed that

Baur’s case fell “outside the heartland” of cases and justified a downward

departure to an offense level of 19. Baur agreed to waive his statutory right to

appeal his sentence under 18 U.S.C. § 3742, including any constitutional challenge

to the application of the Sentencing Guidelines, unless his sentence exceeded the



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statutory maximum sentence or was the result of an upward departure, or if the

government appealed the sentence imposed.

      Before accepting Baur’s guilty plea at a change of plea hearing, the district

court, in compliance with the requirements of Federal Rule of Criminal Procedure

11, specifically questioned Baur concerning the plea agreement’s appeal-waiver

provision, which Baur stated that he understood the effect of his waiver. The

record clearly shows that Baur understood the nature and extent of his

sentence-appeal waiver.

      The court sentenced Baur to 37 months’ imprisonment, at the low end of the

guideline range. The court also imposed a three-year term of supervised release

and waived any applicable restitution or fine. Neither party indicated that they had

any objections.

      Robert E. Adler, appointed to represent Baur, filed a notice of appeal on

behalf of Baur and thereafter filed a motion to withdraw, accompanied by a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), concluding

that there are no grounds upon which an appeal could be predicated. The

certificates of service on the motion and the brief indicate that counsel had served

Baur with both, and this Court’s clerk’s office had also notified Baur of his right to

respond. Baur has not filed a response to counsel’s motion to withdraw.




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      In the Anders brief, counsel correctly notes that the only objection raised by

the defense to the Pre-Sentence Investigation Report was its failure to include the

parties’ joint recommendation of a downward departure to an offense level of 19,

based on a finding that the offense fell outside the heartland of bank-fraud cases.

Counsel notes that the district court thereafter accepted the parties’

recommendation and granted the downward departure in accordance with the terms

of the plea agreement. Counsel asserts that the district court properly applied the

guidelines as advisory pursuant to United States v. Booker, 543 U.S. ___,

125 S.Ct. 738 (2005), and sentenced Baur to the low end of the advisory guideline

range. Counsel acknowledges that Baur’s sentence of 37 months’ imprisonment

and 3 years’ supervised release was a lawful sentence.

      An independent review of the record reveals no issue of arguable merit and

counsel’s assessment of the relative merit of the appeal is correct. A guilty plea

waives most non-jurisdictional issues. See United States v. Matthews,

168 F.3d 1234, 1242 (11th Cir. 1999). At the Rule 11 hearing, Baur admitted

under oath the facts upon which the indictment was based. Baur voluntarily

waived his right to appeal his sentence. The right to appeal a sentence is a

statutory right that can be waived if waived knowingly and voluntarily. See United

States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). The exceptions in the

appeal waiver are not present here: the sentence did not exceed the statutory



                                           4
maximum sentence nor was it the result of an upward departure, and the

government has not appealed the sentence imposed. In light of the overwhelming

evidence in the record showing that Baur understood the nature and extent of his

sentence-appeal waiver, the waiver is effective and precludes review of any issue

regarding Baur’s sentence.

      Counsel’s motion to withdraw is GRANTED and appellant’s conviction and

sentence are AFFIRMED.




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