FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 13, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-10958

Non-Argument Calendar

________________________

D. C. Docket No. 03-00126-CR-FTM-29-DNF

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DANIEL MICHEL, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(December 13, 2006)

Before ANDERSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Daniel Michel appeals his 147-month sentence for conspiring to possess five

kilograms or more of cocaine with the intent to distribute, in violation of 21 U.S.C.
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§§ 846 and 841(b)(1)(A), and for using and carrying a firearm in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Michel argues that the

district court erred when it applied the Sentencing Guidelines as mandatory, in

light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005). Michel also claims that the district court violated Booker

by scoring the Sentencing Guidelines based on 15-50 kilograms of cocaine when

only “5 kilograms or more of cocaine” was charged in the indictment and admitted

to in the plea agreement. Finally, Michel contends that his sentence is cruel and

unusual in violation of the Eighth Amendment. The government responds that

Michel’s Booker claims are barred by his valid sentence appeal waiver and that his

Eighth Amendment claim fails on the merits. We agree with the government.

I. 

The government contends that Michel’s Booker claims are barred by his

sentence appeal waiver. Whether a defendant knowingly and voluntarily waived

his right to appeal is a question of law that we review de novo. United States v.

Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997). We will enforce an appeal

waiver if it is shown that either (1) the district court specifically questioned the

defendant about the appeal waiver, or (2) the record clearly shows that the

defendant fully understood the waiver. United States v. Grinard-Henry, 399 F.3d
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1294, 1296 (11th Cir. 2005), cert. denied, 544 U.S. 1041, 1725 S. Ct. 2279 (2005). 

An appeal waiver may waive the right to appeal blatant errors—including Booker

errors. Broad waiver language will cover Booker grounds for appeal. Id. 

The district judge specifically questioned Michel about the appeal waiver

included in his plea written agreement, and Michel indicated that he was making

the waiver knowingly and voluntarily. We will thus enforce the waiver. See id.

Michel’s wavier contained exceptions allowing him to appeal if: (1) the

sentencing judge made an upward departure, (2) the sentence was above the

statutory maximum, (3) the sentence was in violation of the law apart from the

Sentencing Guidelines, or (4) the government exercised its right to appeal. None

of these exceptions apply to his Booker claims. The sentencing judge did not

depart upward, Michel was not sentenced above the statutory maximum for either

of his crimes, and the government has not appealed. See 21 U.S.C. §§ 846,

841(b)(1)(A); 18 U.S.C. § 924(c)(1)(A). Furthermore, we have held that Booker

challenges directly involve the application of the Sentencing Guidelines and, thus,

are not based on a violation of law apart from the Sentencing Guidelines. See

Grinard-Henry, 399 F.3d at 1297. 

Michel offers several reasons that we should disregard the waiver. First, he
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argues that the government “is using a technicality to defeat the government’s own

promises to Defendant” to be sentenced at the low end of the guideline range. (Br.

for Appellant at 3.) There are several problems with this argument. The waiver is

not a technicality; it is a negotiated part of the government’s plea arrangement. 

The government also did not promise to sentence Michel to the low end of the

guideline range—a promise it would be powerless to carry out because prosecutors

do not sentence defendants. Instead, it promised not to oppose the defendant’s

request for a sentence at the low end of the guideline range, taking care to explain

to Michel that it was the district court that would ultimately decide on his sentence. 

The government kept its promise. Finally, Michel was sentenced at the low end of

the guideline range.

Second, Michel argues that the district court’s explanation of the appeal

waiver was “long, compound, complex, and did not clearly inform Defendant.” 

(Br. for Appellant at 4.) In fact, the record reflects that the district court used

rather succinct and crisp language to adequately explain a complicated issue.

Third, Michel argues that he could not have waived his Booker claims

because at the time that he agreed to the appeal waiver, he could not have been

aware of the Booker decision. We have already enforced an appeal waiver

challenged on identical grounds. Grinard-Henry, 399 F.3d at 1295 (denying a
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motion for reconsideration of the validity of an appeal waiver in light of Booker). 

Finally, Michel tells us that we should disregard the appeal waiver because

“the appellate court has an important supervisory role over the lower courts to

ensure that the law is understood.” (Br. for Appellant at 4.) We are sure that the

district court is aware the Sentencing Guidelines are only advisory. See Diaz v.

United States, No. 2:05-cv-2-FtM-29DNF, 2005 U.S. Dist. LEXIS 38498 at 27

(M.D. Fla. Dec. 19, 2005) (Steele, J.) (demonstrating its awareness that “the

Sentencing Guidelines were found to be advisory only”). The district court does

not require our tutelage. 

II.

Michel also contends that his sentence is cruel and unusual in violation of

the Eighth Amendment. This challenge is not barred by his appeal waiver because

a violation of the Eighth Amendment is a sentence in violation of the law apart

from the Sentencing Guidelines, and therefore falls within an exception to his

waiver. However, his contention fails on the merits.

Because Michel did not raise an Eighth Amendment objection at trial, this

Court reviews only for plain error. See United States v. Raad, 406 F.3d 1322,

1323 (11th Cir. 2005), cert. denied, 126 S. Ct. 196 (2005). The Eighth

Amendment provides that “[e]xcessive bail shall not be required, nor excessive
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fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend.

VIII. As applied to noncapital cases, the Eighth Amendment contains only a

narrow proportionality principle. See Ewing v. California, 538 U.S. 11, 20, 123 S.

Ct. 1179, 1185 (2003). Successful challenges to the proportionality of a noncapital

sentence under the Eighth Amendment are extremely rare because of the deference

accorded to Congress’ authority to determine the types and limits of punishments. 

Raad, 406 F.3d at 1323. The burden is on the defendant to show that the sentence

the district court imposed is disproportionate to the offense committed. See id. at

1324 n.4. “In general, a sentence within the limits imposed by statute is neither

excessive nor cruel and unusual under the Eighth Amendment.” United States v.

Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005) (quotation omitted).

Michel has failed to demonstrate that the sentence imposed is grossly

disproportionate to the offense committed. In his plea, Michel admitted to

conspiring to possess with the intent to distribute approximately 40 kilograms of

cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and to using and

carrying a firearm during and in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A). The maximum penalty for Michel’s

violation of § 846 was life imprisonment, so the district court sentenced Michel

well under the statutory limit. § 841(b)(1)(A). Meanwhile, Michel’s sentence for
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violating § 846 was at the bottom of the applicable guidelines range, which the

district court lowered due to Michel’s substantial assistance to the government. 

There is a presumption that sentences within the guidelines range are reasonable,

see United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), and this sentence

was at the bottom of that range. Accordingly, it was not plainly disproportionate.

We understand the crux of Michel’s complaint to be that he was arrested as

part of an undercover operation. His plan to steal forty kilograms of cocaine was

doomed to failure from the start, because the cocaine did not exist. Since he never

committed his planned robbery, he feels that he should not receive an extended

sentence for that crime. But Michel was not sentenced for robbery. He was

sentenced for conspiring to possess approximately forty kilograms of cocaine with

the intent to distribute and for using and carrying a firearm in relation to a drug

trafficking crime. He admits to committing both of these serious offenses, and he

was punished accordingly.

DISMISSED IN PART, AFFIRMED IN PART.