FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 8, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10918

Non-Argument Calendar

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D. C. Docket No. 06-00345-CR-T-17-TGW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

NARCISO CANDELO, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 8, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

A Middle District of Florida grand jury indicted appellant and three others in
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Count One of possessing with intent to distribute five kilograms or more of cocaine

while aboard a vessel subject to the jurisdiction of the United States, in violation of

46 U.S.C. App. § 1903(a) and (g), 21 U.S.C. § 960(b)(1)(B)(ii), and, in Count Two

with conspiring to possess with intent to distribute five kilograms or more of

cocaine while aboard a vessel subject to the jurisdiction of the United States, in

violation of 46 U.S.C. App. § 1903(a), (g), and (j), and 21 U.S.C. §

960(b)(1)(B)(ii). The indictment included a forfeiture provision that provided

appellant with notice that the United States intended to forfeit any property derived

from or used to facilitate the commission of the charged offenses, as prescribed by

46 U.S.C. App. § 1904, 21 U.S.C. §§ 853(p) and 881(a), and 28 U.S.C. § 2461(c). 

Pursuant to a written plea agreement, appellant pled guilty to the Count One

offense, and on March 5, 2007, the district court sentenced him to a prison term of

135 months. Appellant did not appeal his conviction or sentence.

On February 4, 2008, appellant moved the district court to vacate his

conviction and sentence pursuant to 28 U.S.C. § 2255, claiming, among other

things, that his attorney had been ineffective by failing to file an appeal. The

district court granted the motion and, pursuant to this court’s decision in United

States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000), vacated the former

judgment, imposed the same sentence, and entered a new judgment. This appeal
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followed. 

Appellant argues that his guilty plea was not knowing and voluntary because

the magistrate judge did not advise him of the possibility of forfeiture and, thus,

failed to comply with Rule 11 of the Federal Rules of Criminal Procedure. He also

challenges the district court’s judgment of forfeiture and the court’s denial of a

mitigating-role reduction of his base offense level in determining the applicable

Guidelines sentence range. The Government counters with the argument that, in

entering the plea agreement, appellant waived his right to appeal his sentence. 

As a threshold matter, we conclude that appellant has waived his challenge

to the plea proceeding before the magistrate judge because he failed to object to the

report and recommendation the judge submitted to the district court. Rule 59 of

the Federal Rules of Criminal Procedure governs matters before a magistrate judge

and provides:

Within 10 days after being served with a copy of the recommended

disposition, or at some other time the court sets, a party may serve and

file specific written objections to the proposed findings and

recommendations. . . . Failure to object in accordance with this rule

waives a party’s right to review.

Fed. R. Crim. P. 59(b)(2). The waiver provision was adopted in 2005, and the

advisory committee explained that the provision “is intended to establish the

requirements for objecting in a district court in order to preserve appellate review
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of magistrate judges’ decisions.” Fed. R. Crim. P. 59 advisory committee’s notes

(2005). 

 We recently explained the difference between waiver of a claim and

forfeiture of a claim in United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en

banc). “[W]aiver is the intentional relinquishment of a known right, whereas the

simple failure to assert a right, without any affirmative steps to voluntarily waive

the claim, is a forfeiture to be reviewed under the plain error standard embodied in

[Fed. R. Crim. P.] 52(b).” Id. at 1222. We affirm a district court’s ruling where

the appellant has waived his right to challenge the ruling on appeal. United States

v. Rodriguez-Velasquez, 132 F.3d 698, 698 (11th Cir. 1998).

Because appellant waived his challenge to the plea proceeding before the

magistrate judge, we do not review his claim that his plea was not knowing and

voluntary. Accordingly, we affirm his conviction.

Appellant argues that the district court failed to comply with Rule 32.2 of

the Federal Rules of Criminal Procedure before ordering forfeiture, and

erroneously denied him a mitigating-role reduction of his base offense level. The

Government responds that appellant’s waiver of his right to appeal his sentence

was made knowingly and voluntarily and that, thus, we are precluded from

reviewing his sentence. 
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We review the knowing and voluntary nature of a sentence appeal waiver de

novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). A sentence

appeal waiver contained in a plea agreement, made knowingly and voluntarily, is

enforceable. Id. at 1350. To enforce the sentence appeal waiver, the Government

must demonstrate either that (1) the district court specifically questioned the

defendant about the waiver during the change of plea colloquy, or (2) the record

clearly shows that the defendant otherwise understood the full significance of the

waiver. Id. at 1351. “A waiver of the right to appeal includes a waiver of the right

to appeal difficult or debatable legal issues–indeed, it includes a waiver of the right

to appeal blatant error.” United States v. Howle, 166 F.3d 1166, 1169 (11th Cir.

1999). 

Forfeiture procedures are governed by Rule 32.2. “[C]riminal forfeiture is

part of a defendant’s sentence.” United States v. Gilbert, 244 F.3d 888, 924 (11th

Cir. 2001); see also Fed. R. Crim. P. 32.2(b)(3). Therefore, a forfeiture error is

appealable only in the context of a sentence appeal. See United States v. Peas, 331

F.3d 809, 817 (11th Cir. 2003) (holding that the government’s challenge to a

judgment’s lack of a forfeiture order was not before the Court because the

government did not appeal the defendant’s sentence). 

Appellant’s sentence appeal waiver was knowing and voluntary, and none of
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the limited exceptions to the appeal waiver applies. Accordingly, we affirm

appellant’s sentence via the dismissal of his sentence appeal. In sum, we affirm

appellant’s conviction and dismiss the sentence appeal.

AFFIRMED, in part; DISMISSED, in part.