[DO NOT PUBLISH ]
I N THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 14850 Non

- Argument Calendar

______ __________________ D.C. D ocket N o. 8:16

- cr - 00389

- SDM

- TGW

- 3 UNITED STATES OF AMERICA, Plaintiff

- Appellee,
versus MARCIAL CUERO

- CUERO , Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ ( October 21, 2019 ) B efore TJOFLAT , JORDAN , and ROSENBAUM , Circuit Judges
. PER CUR IAM : Marcial Cuero

- Cuero appeals his sentence of 235 mo nths of imprisonment after pleading guilty , pursuant to a written agreement, to conspiracy to possess with

Case: 18-14580 Date Filed: 10/21/2019 Page: 1 of 52 intent to distribute 5 kilograms or more of cocaine, while on board a vessel subject to the jurisdiction of the United States. The government has moved to dismiss Cuero

- Cuero’s appeal based on the sentence

- appeal waiver in h is plea agreement. Under the plea agreement, Cuero

- Cuero agreed to plead guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, while on board a vessel subject to the jurisdiction of the United States, in violation o f 46 U.S.C. §§ 70503(a), 70506(a), (b) and 21 U.S.C. § 960(b)(1)(B)(ii). The plea agreement contained an appeal waiver, in which Cuero

- Cuero expressly agreed to waive the right to appeal “[his] sentence on any groun d,” except on grounds that (1) the sente nce exceeded the defendant’s applicable guidelines range “ as determined by the Court pursuant to the United States Sentencing Guidelines,” (2) the sentence exceeded the statutory maximum penalty, or (3) the sentence violated the Eight Amendment. The appea l waiver released Cuero

- Cuero from its provisions if the government appealed the sentence imposed. T he magistrate judge recommended acceptance of C uero - Cuero ’s guilty plea after conducting a plea colloquy at which Cuero

- Cuero and his interpreter were placed under oath. During this colloquy, t he magistrate judge confirmed that Cuero

Cuero’s counsel spoke Spanish to him directly, and Cuero

- Cuero indicated that he understood the Spanish being spoken to him by his counsel and the interpreter.

Case: 18-14580 Date Filed: 10/21/2019 Page: 2 of 53 Cuero

- Cuero confirmed that he had reviewed the plea agreement with his counsel and understood e ach page of it
. The magistrate judge also went over the plea agreement. Among other aspects , the magistrate judge reviewed the appeal waiver and informed Cuero

- Cuero that it allowed him to appeal only if the sentence exceeded the guidelines range as deter mined by the court or the statutory maximum penalty or if it violated the Eighth Amendment
. Cuero

- Cuero verified he understood and said he had no questions about the waiver . Cuero

- Cuero also acknowledged that he could not appeal the
manner in which the d istrict court calculated his sentencing guidelines
. He stated that , as part of the plea agreement, he was freely and voluntarily agreeing to waive his right to appeal as a part of the plea agreement. Cuero

- Cuero agreed that no one had forced or coerced h im into doing so , no one had promised him anything other than what was contained in his plea agreement, no one had coached him to testify other than the truth, and his answers were truthful. Based on the magistrate judge’s colloquy with Cuero

- Cuero, as r elevant here, t he magistrate judge found that Cuero

- Cuero was alert and understood the consequences of pleading guilty and that Cuero

- Cuero was pleading guilty freely, voluntarily, and knowingly , with the advice of counsel with whom he stated he was satisfied. The magistrate judge recommended that the guilty plea be accepted by the

Case: 18-14580 Date Filed: 10/21/2019 Page: 3 of 54 district cour t . With no objections filed, the district court accepted the guilty plea and adjudged Cuero

- Cuero guil ty. At sentencing, b ased on a total offense level of 3 7 and a criminal

- history category of II, the district court calculated Cuero

- Cuero’s guideline range at 2 35 to 293 months ’ imprisonment . The district court sentenced Cuero

- Cuero to 235 months’ impris onment. On appeal, Cuero Cuero argues that his sentence is substantively unreasonable
. The government has move d to dismiss the appeal, based on the appeal waiver. We review de novo the validity of a sentence appeal waiver. United States v. Johnson , 541 F.3d 1064, 1066 (11th Cir. 2008). A district court must confirm that a defendant understands “the terms of any plea agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed. R. Crim. P 11(b)(1)(N). A sentence ap peal waiver will be enforced if it was made knowingly and voluntarily. United States v. Bushert , 997 F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was made knowingly and voluntarily, the government must show 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.

Case: 18-14580 Date Filed: 10/21/2019 Page: 4 of 55 Here, the record establishes that Cuero

- Cuero knowingly and voluntarily agreed to the appeal waiver. The district court expressly explained the waiver to Cuero

- Cuero and allowed him an opportunity to ask any questions concerning it. Cuero

- Cuero expressly said he understood the provision and acknowledged that no one had forced or coerced him to sign it. Therefore, we enforce the appeal waiver. Cuero

- Cuero’s challenge on appeal to the substantive reasonableness of his sentence does not fall within any exceptions to the appeal waiver, and the government did not appeal
. Accordingly, we grant the government’s motion to dismiss the appeal. APPEAL DISMISSED
. Case: 18-14580 Date Filed: 10/21/2019 Page: 5 of 5