[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-10393

Non-Argument Calendar

________________________

D.C. Docket No. 8:17-cr-00012-RAL-TBM-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS VIVAS CIFUENTES,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(October 1, 2018)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

Luis Vivas Cifuentes appeals his 87-month sentence for conspiracy to 

possess with intent to distribute 5 kilograms or more of cocaine while aboard a 

vessel subject to the jurisdiction of the United States. He argues the district court 

Case: 18-10393 Date Filed: 10/01/2018 Page: 1 of 5 
2

should have given him a mitigating role adjustment under United States Sentencing 

Guidelines § 3B1.2. The government moved to dismiss Cifuentes’s appeal based 

on the sentence-appeal waiver in his plea agreement. The government argues that 

Cifuentes knowingly and voluntarily waived his right to appeal his sentence on the 

grounds he raises in this appeal. Cifuentes responds that the waiver is 

unconstitutional because his right to appeal did not exist when he signed the plea 

agreement. After careful review, we agree that Cifuentes’s waiver is enforceable

and dismiss this appeal. 

I.

“We review the validity of a sentence appeal waiver de novo.” United 

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). Such waivers are valid 

and enforceable if they are made knowingly and voluntarily. United States v. 

Bushert, 997 F.2d 1343, 1350–51 (11th Cir. 1993). The government can 

demonstrate a waiver was knowing and voluntary by showing either that (1) the 

district court specifically questioned the defendant about the waiver during the plea 

colloquy, or (2) the record makes clear that the defendant otherwise understood the 

full significance of the waiver. Id. at 1351. When reviewing the plea colloquy, we 

look for clear language from the district court explaining what the defendant is 

giving up. See id. at 1352–53 (concluding the district court’s confusing language 

about the sentence-appeal waiver made it unclear whether the defendant 

Case: 18-10393 Date Filed: 10/01/2018 Page: 2 of 5 
3

understood that he was giving up his appeal rights). Also, we “strong[ly] 

presum[e] that the statements made during the colloquy are true.” United States v. 

Medlock, 12 F.3d 185, 187 (11th Cir. 1994). 

II.

Section 6 of the plea agreement, titled “Defendant’s Waiver of Right to 

Appeal the Sentence,” stated that Cifuentes agreed to 

waive[] the right to appeal [his] sentence on any ground, including the 

ground that the Court erred in determining the applicable guidelines 

range pursuant to the United States Sentencing Guidelines, except (a) 

the ground that the sentence exceeds [his] applicable guidelines range 

as determined by the Court pursuant to the United States Sentencing 

Guidelines; (b) the ground that the sentence exceeds the statutory 

maximum penalty; or (c) the ground that the sentence violates the 

Eighth Amendment to the Constitution[.]

Cifuentes does not contend that his claims on this appeal fall into these exceptions. 

Thus, if the waiver is valid, we must dismiss his appeal. 

Cifuentes argues that the waiver is unconstitutional because, in his view, his 

statutory right to appeal did not exist when he signed the plea agreement. His 

argument relies on Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582 (2005), in 

which the Supreme Court stated, “Halbert, in common with other defendants 

convicted on their pleas, had no recognized right to appointed appellate counsel he 

could elect to forgo.” Id. at 623, 125 S. Ct. at 2594. Cifuentes argues that he had 

no statutory right to appeal at the time he entered the plea and, under Halbert,

Case: 18-10393 Date Filed: 10/01/2018 Page: 3 of 5 
4

could not waive what he had no right to do. This argument is foreclosed by 

binding precedent. In Bushert, this court held that a criminal defendant can waive 

his right to a direct appeal as part of a plea agreement, so long as the waiver is

knowing and voluntary. 997 F.2d at 1350. Halbert, which established defendants’ 

right to appointed counsel for purposes of Michigan’s system of first-tier appellate

review, 545 U.S. at 623, 125 S. Ct. at 2594, did not overrule our precedent in 

Bushert.

During the plea colloquy, Cifuentes said he understood the court’s questions, 

the nature of the proceeding, the court’s explanations of his plea agreement, and 

the rights he was giving up by pleading guilty. In response to the court’s 

questions, Cifuentes said he was forty-two years old and he had about a third-grade 

education. Although he could not understand English, Cifuentes said he reviewed 

the plea agreement with his counsel who speaks Spanish and was assisted by an 

interpreter “on virtually every occasion” they met. Cifuentes confirmed he had no 

problem communicating with his counsel. He said he was not under the influence 

of any drugs, medication, or alcohol and had not been treated for any mental 

illness. The district court gave detailed explanations of the right to appeal and the 

sentence-appeal waiver, and Cifuentes said he understood that he was giving up his 

right to appeal by pleading guilty. In short, there is nothing in the record indicating 

Cifuentes did not understand the waiver and its consequences or otherwise 

Case: 18-10393 Date Filed: 10/01/2018 Page: 4 of 5 
5

rebutting the “strong presumption that the statements made during the colloquy are 

true.” See Medlock, 12 F.3d at 187. And Cifuentes has not pointed to, nor have 

we otherwise identified, anything in the record indicating the waiver provision or 

the court’s colloquy was confusing or misleading. See Bushert, 997 F.2d at 1352–

53.

On this record, the government’s motion to dismiss is GRANTED.

Case: 18-10393 Date Filed: 10/01/2018 Page: 5 of 5