United States v. Arturo Eliseo Martinez-Barrera , 348 F. App'x 533 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 8, 2009
No. 09-10873 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00005-CR-FTM-99DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO ELISEO MARTINEZ-BARRERA,
a.k.a. Arturo Martinez-Berrera,
a.k.a. Apples,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 8, 2009)
Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
After pleading guilty, Arturo Eliseo Martinez-Barrera appeals his conviction
and 151-month sentence for conspiracy to possess with intent to distribute at least
1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii)
and 18 U.S.C. § 2.
On appeal, Martinez-Barrera challenges the voluntariness of his guilty plea.
The magistrate judge conducted the plea colloquy and issued a report (“R&R”)
recommending that the district court accept Martinez-Barrera’s guilty plea to
Count 1. Martinez-Barrera filed no objections, and the district court accepted his
plea. On appeal, Martinez-Barrera argues that the magistrate judge did not advise
him of the consequences of his guilty plea, in violation of Federal Rule of Criminal
Procedure 11, and thus his guilty plea should be set aside.1
We lack jurisdiction to review the validity of Martinez-Barrera’s guilty plea
because he did not file a written objection to the magistrate judge’s R&R. See Fed.
R. Crim. P. 59(b)(2) (providing that the failure to file a written objection to the
magistrate judge’s proposed findings and recommendations with regard to a
1
Specifically, Martinez-Barrera argues that the magistrate judge did not explain to him
the sentencing differences in pleading guilty to an offense involving a 1,000-kilogram drug
quantity as opposed to an offense involving a 100-kilogram drug quantity. Martinez-Barrera
was originally charged with conspiring to possess with intent to distribute at least 1,000
kilograms of marijuana (Count 1), conspiring to import into the United States at least 100
kilograms of marijuana (Count 2), and possessing with intent to distribute at least 100 kilograms
of marijuana (Count 3). In exchange for his guilty plea to Count 1, which contained the 1,000-
kilogram drug quantity, the government dismissed Counts 2 and 3, which contained the 100-
kilogram drug quantity.
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dispositive matter “waives a party’s right to review”).2 Thus, Martinez-Barrera’s
conviction is affirmed. See United States v. Rodriguez-Velasquez, 132 F.3d 698,
698 (11th Cir. 1998) (explaining that we affirm the district court’s ruling if the
defendant waived his right to appeal and no manifest injustice occurred).
Martinez-Barrera also argues that his sentence is substantively unreasonable
under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). However,
Martinez-Barrera’s plea agreement contained a sentence-appeal waiver, which
stated that Martinez Barrera “waive[d] the right to appeal [his] sentence or to
challenge it collaterally on any ground” so long as the sentence: (1) was not above
the court-determined advisory guidelines range; (2) did not exceed the statutory
maximum sentence; and (3) did not violate the Eighth Amendment.
None of the circumstances under which Martinez-Barrera reserved his right
to appeal his sentence has occurred. Martinez-Barrera’s 151-month sentence fell
within the court-determined advisory guidelines range of 151 to 188 months
imprisonment and did not exceed the statutory maximum of life imprisonment for
his offense, see 21 U.S.C. § 841(b)(1)(A). On appeal, Martinez-Barrera does not
2
Indeed, according to the R&R, Martinez Barrera “waived the ten day objection period to
this Report and Recommendation.” Even if this issue were not waived, our review would be for
plain error, which Martinez-Barrera has not shown. See United States v. Clark, 274 F.3d 1325,
1326 (11th Cir. 2001) (applying plain error review prior to adoption of Rule 59(b)). The
magistrate judge explained to Martinez-Barrera the consequences of pleading guilty by
informing him of the penalties for pleading guilty and the rights that he was waiving by pleading
guilty.
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argue that his sentence violated the Eighth Amendment. Furthermore, the
language of the sentence-appeal waiver is broad enough to encompass a
reasonableness challenge. See United States v. Grinard-Henry, 399 F.3d 1294,
1296 (11th Cir. 2005) (explaining that broad language in an appeal waiver may
include an appeal based on Booker). Therefore, if enforceable, Martinez-Barrera’s
sentence-appeal waiver precludes review of his reasonableness claim.
Martinez-Barrera argues that his sentence-appeal waiver is invalid because
the district court failed to adequately explain the appeal waiver during his plea
colloquy.3 A sentence-appeal waiver must be knowing and voluntary and will be
enforced if the government shows either that: (1) the district court specifically
questioned the defendant about the waiver; or (2) the record makes clear that the
defendant otherwise understood the full significance of the waiver. United States
v. Bushert, 997 F.2d, 1343, 1350-51 (11th Cir. 1993).
Here, during the plea colloquy, the magistrate judge specifically discussed
the sentence-appeal waiver and its exceptions with Martinez-Barrera. Martinez-
Barrera stated under oath that he understood the sentence-appeal waiver. We apply
a strong presumption that Martinez-Barrera’s statement under oath that he
understood the sentence-appeal waiver in his plea agreement was true, and
3
We review de novo whether an appeal waiver was knowing and voluntary and thus
enforceable. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993).
4
Martinez-Barrera has failed to meet the heavy burden to show otherwise. See
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994); United States v.
Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
Because Martinez-Barrera knowingly and voluntarily entered into his
sentence-appeal waiver, the sentence-appeal waiver is enforceable. Thus, we do
not address Martinez-Barrera’s reasonableness argument and dismiss his appeal of
his sentence.
AFFIRMED IN PART; DISMISSED IN PART.
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