United States v. Juan Carlos Trasvina Alvarez , 128 F. App'x 103 ( 2005 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________  ELEVENTH CIRCUIT
    MAY 9, 2005
    No. 04-10702                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 03-00258-CR-2-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JUAN CARLOS TRASVINA ALVAREZ,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (May 9, 2005)
    ON REMAND FROM THE
    SUPREME COURT OF THE UNITED STATES
    Before CARNES, MARCUS and PRYOR, Circuit Judges.
    PER CURIAM:
    This appeal of Juan Carlos Trasvina Alvarez regarding the propriety of his
    conviction and sentence for conspiracy to possess with intent to distribute cocaine
    is on remand from the Supreme Court of the United States for further
    consideration in the light of United States v. Booker, 543 U.S. —, 
    125 S. Ct. 738
    (2005). See Alvarez v. United States, — U.S. —, 
    125 S. Ct. 1717
     (2005). We
    previously affirmed Alvarez’s sentence. United States v. Alvarez, No. 04-10702
    (11th Cir. Nov. 17, 2005). After reconsideration, we again affirm Alvarez’s
    conviction and sentence, and we reinstate our previous opinion.
    The decision of the Supreme Court in Booker does not change our
    resolution of this appeal. As we explained before, in his plea agreement, Alvarez
    agreed to waive his right to appeal his sentence. An appeal waiver that is part of a
    knowing and voluntary plea agreement is enforceable, United States v. Bushert,
    
    997 F.2d 1343
    , 1350-51 (11th Cir. 1993), and we have held that “the right to
    appeal a sentence based on Apprendi/Booker grounds can be waived in a plea
    agreement.” United States v. Rubbo, 
    396 F.3d 1330
    , 1335 (11th Cir. 2005).
    During Alvarez’s plea colloquy, the district court specifically questioned Alvarez
    regarding the appeal waiver, and Alvarez confirmed that he understood and agreed
    voluntarily to it. Alternatively, again as we explained in our previous opinion,
    2
    Alvarez also did not raise a Booker or Blakely challenge to his sentence in his
    opening brief. Because Alvarez first raised that issue in his reply brief, the
    argument was waived. United States v. Duncan, 
    400 F.3d 1297
    , 1299 n.1 (11th
    Cir. 2005); see also United States v. Levy, 
    379 F.3d 1241
    , 1244 (11th Cir. 2004)
    (per curiam).
    After reconsideration, we again affirm and reinstate our previous opinion.
    OPINION REINSTATED; AFFIRMED.
    3
    

Document Info

Docket Number: 04-10702; D.C. Docket 03-00258-CR-2-1

Citation Numbers: 128 F. App'x 103

Judges: Carnes, Marcus, Per Curiam, Pryor

Filed Date: 5/9/2005

Precedential Status: Non-Precedential

Modified Date: 8/2/2023