FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 12, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13164

Non-Argument Calendar

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D. C. Docket No. 05-80138-CR-DTKH

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ANDREW WEISS, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

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 (December 12, 2007)

Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.

PER CURIAM:

On July 28, 2005, a Southern District of Florida grand jury returned a multi-
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count indictment against Andrew Weiss, the appellant, and Marc Wells. In Count

1, Weiss, a physician, and Wells were charged with a 21 U.S.C. § 846 conspiracy 

to dispense Oxycodone outside the scope of professional medical practice and not

for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1). Counts 2

through 27 charged Weiss, and Counts 28 through 41 charged Weiss and Wells,

with substantive offenses of illegally distributing Oxycodone by writing

prescriptions for the drug that were outside the course of professional medical

practice and not for a legitimate medical purpose in violation of § 841(a)(1). 

Count 52 charged Weiss with obstructing and impeding the grand jury

investigation into his unlawful distributing of Oxycodone by creating and turning

over false medical records to law enforcement officers in violation of 18 U.S.C. §

1512(c)(2). 

On February 17, 2000, pursuant to a plea agreement with the Government,

Weiss pled guilty to Counts 2, 9, 22 and 39. As part of the agreement, Weiss

waived his right to appeal his sentences unless the sentences exceeded the statutory

maximum penalty or were the result of the district court’s upward departure from

the sentence range prescribed by the Sentencing Guidelines. On May 22, 2006, the

district court sentenced Weiss within the sentence range to concurrent prison terms
 The sentence range (for each of the four offenses) determined by using a total offense level 1

of 33 and a criminal history category of I was 135 to 168 months’ imprisonment. 

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of 150 months and three year terms of supervised release. Weiss now appeals his 1

sentences, contending that the sentence waiver contained in the plea agreement 

does not bar him from appealing his sentences on the ground that the Government

breached the plea agreement. In addition, Weiss claims that the district court, in

determining the Guidelines sentence range, arrived at an incorrect base offense

level and applied the incorrect standard to his request for a safety-valve reduction,

under U.S.S.G. §§ 5C1.2 and 2D1.1(b)(6) (2002).

Weiss contends that the Government breached the plea agreement in this

way: during plea negotiations, it led him to believe that he would be held

accountable for a specific number of Oxycodone pills, but informed the court’s

probation service that his offenses involved additional pills. “Plea bargains . . . are

like contracts and should be interpreted in accord with what the parties intended.” 

United States v. Rubbo, 396 F.3d 1330, 1334 (11th Cir. 2005). Therefore, whether

the government has violated a plea agreement “is judged according to the

defendant’s reasonable understanding at the time he entered his plea.” United

States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996) (quotation omitted). In finding

what the defendant reasonably understood, we look to the agreement itself. If the

agreement is ambiguous, we consider extrinsic evidence of the parties’ intent. 
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United States v. Copeland, 381 F.3d 1101, 1106 (11th Cir. 2004). If the agreement

is not ambiguous, we find the defendant’s understanding from the four corners of

the document. Id. 

Nothing in the plea agreement in this case indicates that the Government was

restricted from informing the court via its probation service of the number of pills

for which Weiss should be held accountable. Although an initial draft of the

agreement did state the specific number of pills involved in the offenses, that draft

was not executed. The draft that became the plea agreement removed that

statement – with Weiss’s approval, of course. That draft stated that the U.S.

Attorney reserved the right to “inform the court and the probation office of all facts

pertinent to the sentencing process, including all relevant information concerning

the offenses committed . . . .” In sum, the plea agreement is not ambiguous, and

we do not consider what the Government represented to Weiss in the initial draft. 

His argument that the Government breached the agreement fails.

We enforce a sentence appeal waiver, such as the waiver in this case, where

the defendant agreed to the waiver knowingly and voluntarily. A knowing and

voluntary waiver is shown where the “(1) the district court specifically questioned

the defendant concerning the sentence appeal waiver during the Federal Rule of

Criminal Procedure 11 colloquy, or (2) it is manifestly clear from the record that
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the defendant otherwise understood the full significance of the waiver.” United

States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). “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).

We enforce Weiss’s waiver because the district court specifically questioned

Weiss concerning the waiver, and found that he understood it, before accepting his

guilty pleas. See Bushert, 997 F.2d at 1351. 

For the foregoing reasons, Weiss’s sentences are

AFFIRMED.