[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 11

- 14241 Non

- Argument Calendar

________________________ D.C. Docket No. 6:10

- cr - 00281

- GAP

- KRS

- 1

UNITED STATES OF AMERICA, Plaintiff

– Appellee,

v ersus EFRAIM DIVEROLI, Defendant

– Appellant.

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

________________________ (January 30, 2013) Before CARNES , BARKETT and MARTIN , Circuit Judges.
PER CURIAM:

Case: 11-14241 Date Filed: 01/30/2013 Page: 1 of 122 Efraim Diveroli appeals his conviction and sentence for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
A. BACKGROUND In June 2008, a federal grand jury returned an indictment charging Diveroli

w ith conspiring to commit offense s against the United Stat es, a felony in violation of 18 U.S.C. § 371. T he district court released Diveroli on bond pending trial. The terms of the bond agreement warned: The commission of any offense while on pretrial release may result in an additional sentence upon conviction for such offense to a term of imprisonment of not more than ten years, if the offense is a felony . . . . This sentence shall be consecutive to any other sentence and must be imposed in addition to the sentence r eceived for the offense itself. Diveroli pleaded guilty to the conspiracy charge in August 2009, and in January 2011 , he was sentenced to 48

- months imprisonment. Diveroli did not appeal his conspiracy conviction or sentence. In October 2010, following hi s conviction for conspiracy but prior to his sentencing, Diveroli was charged with the offense that is the basis of this appeal: possession of a firearm following a previous conviction for a felony, in violation of 18 U.S.C. § 922(g)(1). The charging docu ment 1 alleged that on August 20, 2010, during his pretrial release on the conspiracy c harge, Diver oli knowingly received one semiautomatic pistol, two semi automatic rifles, and assorted rounds of

1 For his firearm s offense, Diveroli was charged by information. He later waived his right to prosecution by indictment.

Case: 11-14241 Date Filed: 01/30/2013 Page: 2 of 123 ammunition, all of which had been transported in interstate commerce. The information identified Diveroli ’ s prior felony conviction as his August 2009 conspiracy conviction. Diveroli pleaded guilty to the firearm s offense in November 2010

. His plea agreement stipulated that at the time he received the firearms, he was a convicted felon, and set forth the factual basis for the offense. It also stated that the maximum penalty for the offense was ten

- years imprisonment ; that the district court would not be bound by terms of the agreement regarding sentencing ; and that the court would be free to impose such sentence that it deemed appropriate, after
consideration of the P resentence I nvestigation R eport (PS I ) prepared by the
P robation O ffice. The agreement did not discuss possible sentencing enhancements stemming from Diveroli having committed the offense while on pretrial release

. Instead, the government expressly “ reserve[d] its right and obligation to report to the Court and the United States Probation Office ” all relevant factual information, “ including the totality of [Diveroli ’ s] criminal activities. ” The agreement also contained a sentence appeal waiver

. Diveroli agreed that he waived his right to appeal his sentence, except for on the ground that (1)

“ the sentence exceed[ed] [his] applicable guidelines range as determined by the
Court pursuant to the United States Sentencing Guidelines; ” (2) “ the sentence

Case: 11-14241 Date Filed: 01/30/2013 Page: 3 of 124 exceed[ed] the statutory maximum penalty ” ; or (3) “ the sentence violat[ed] the Eighth Amendment. ” The agreement also provided that the appeal waiver was void if the government appealed Diveroli ’ s sentence. Finally, the plea agreement contained an integration clause, which stated: This plea agreement constitutes the entire agreement between the government and the defendant with respect to the aforementioned guilty plea and no other promises, agreements, or representations exist or have been made to the defendant or defendant ’ s attorney with r egard to such guilty plea.
At his change of plea hearing, the Magistrate Judge explained the terms of the plea agreement to Diveroli. Diveroli affi rmed his understanding that , at sentencing , the district court would no t be bound by the terms of the plea agreement dealing with sentencing recommendations ; that he faced a maximum sentence of ten years imprisonment but his sentencing guideline range was yet to be determined; and that there could be additional consequences to pleading guilty in this case due to his conspiracy conviction. Diveroli also affirmed that he understood the consequences of the appeal waiver and stated his understanding that if the sentencing guideline range or the sentence turned out to be something different than he expected, he cou ld not withdraw his plea for that reason

. After stating his understanding , Diveroli admitted to committing the firearms offense and pleaded guilty.

Case: 11-14241 Date Filed: 01/30/2013 Page: 4 of 125 The Magistrate Judge entered a report finding that Diveroli ’ s guilty plea was knowing and voluntary, and was supported by an independent factual basis. Diveroli did not object. Accordingly, the district court accepted the Magistrate Judge ’ s recommendation and entered Diveroli ’ s plea

. Diveroli ’ s PSI described his offense conduct consistent with the facts outlined in the plea agreement. It also detailed that when Diveroli received the semiautomatic fi rearms from undercover agents, he came within close proximity of large capacity ammunition magazines for the fir earm s , sufficient to warrant an enhancement of his base offense level to 20 under U SSG § 2 K2.1(a)(4)(B)

. The PSI then added a two

- level increase because Diveroli ’ s offense involved at least three, but not more than seven firearms, pursuant to § 2 K 2.1(b)(1)(A), and a three

- level increase because he committed the offense while on release in connection with the conspiracy charge , pursuant to § 3C1.3. Diveroli also received
a two

- level reduction fo r acceptance of responsibility under § 3E1.1(a), and a

one - level reduction for assisting the investigation of the offense, under §§ 3E1.1(a) and (b)

. Based on a total offense level of 22 and a criminal history category of II , Diveroli ’ s applicable guideline range was 46 to 57

- months imprisonment

. Diveroli objected to his base offense level as calculated by the PSI , arguing
that the firearms he received did not meet the definition of semiautomatic firearms capable of accepting large capacity magazine s. Specifically, he argued that high

Case: 11-14241 Date Filed: 01/30/2013 Page: 5 of 126 capacity magazines were not in close proximity to the firearms that he handled. Additionally, he objected to the three

- level increase pursuant to § 3C1.3 , because he was not specifically charged with having committed a felony while on pre

- trial relea se under 18 U.S.C. § 3147

. The district court overruled Diveroli’s objections , determin ed that the PSI ’ s recommended offense level and criminal history category were correct , and sentenced him to 48

- months imprisonment , 24 months to run concurrent to Dive roli ’ s sentence for his conspiracy conviction , and 24 months to run consecutive to that sentence. The court then clarified that the 24

- month sentence to run consecutively consisted of 12 months for the instant offense , and 12 months for having committed a felony while on release for his conspiracy charge, as required by § 3147. The district court sentenced Diveroli, and this appeal followed.
B. DISCUSSION For the first time on appeal, Diveroli argues that his plea was not knowing and voluntary, and that the government breached his plea agreement by failing to specify in the agreement that it would seek application of § 3147 and certain Guidelines enhancements. He challenges his sentence on a number o f grounds. We consider each of Diveroli ’ s arguments in turn.
1. Case: 11-14241 Date Filed: 01/30/2013 Page: 6 of 127 Diveroli ’ s first claim is that his plea was not knowing or voluntary because neither the district court nor the government warned him that he would be subject
to an additional sentence under 1 8 U.S.C. § 3147, and a sentencing enhancement under USSG § 3C1.3. Diveroli did not object to the M agistrate J udge ’ s Rule 11 colloquy or to the
M agistrate J udge ’ s report finding that his plea was knowing and v oluntary

. W hen a defendant raise s a Rule 11 claim for the first time on appeal, we review for plain

error. 2 United States v. Moriarty , 429 F.3d 1012, 1019 (11th Cir. 2005)

. To establish plain error, Diveroli must show: (1) error; (2) that is plain; (3) that
affect ed his substantial rights

. Id

. “ If all three conditions are met, we may exercise our discretion to recognize a forfeite d error, but only if the error seriously affects the fairness, integrity or public repu tation of judicial proceedings. ” Id. (quotation marks and alterations omitted). Under the prior panel precedent rule,

we are bound by earlier panel holdings unless and until they are overruled by this Court sitting en banc or by the Supreme Court. United States v. Smith , 122 F.3d 1355, 1359 (11th Cir. 1997).

2 It appears that this Court has not, in a published opinion, addressed whether under Fed eral R ule of Crim inal P rocedure 59 a defendant waives a challenge to the knowing and voluntary nature of his guilty plea if he failed to object to the Magistrate Judge ’ s report that the plea complied with Rule 11. We need not address this Rule 59 issue here, however, because for the reasons explained, Diveroli has failed to show plain error

. See United States v. Monroe , 353 F.3d 1346, 1349 (11th Cir. 2003)

.

Case: 11-14241 Date Filed: 01/30/2013 Page: 7 of 128 We reject Diveroli ’ s argument that his plea was not knowing or voluntary because he was not warned regarding the possibility of an additional sentence under § 3147, and a sentencing enhancement under § 3C1.3

. We have previously rejected a similar claim that the district court commit ted plain error by failing to notify the defendant at his plea colloquy that § 3147 and its corresponding Guidelines pr ovision, § 2J1.7

— § 3C1.3 ’ s predecessor 3

— would apply at sentencing. United States v. Tyndale , 209 F.3d 1292 , 1296 (11th Cir. 2000) ; see also United States v. Bozza , 132 F.3d 659, 661 (11th Cir. 1998) ( conclud ing that the district court was not required to notify the defendant of potential sentencing
enhancement s prior to accepting his guilty plea )

. Neither this Cour t sitting en banc , nor the Supreme Court has overruled Tyndale or Bozza . Therefore, we are bound by our Circuit ’ s precedent and conclude that the district court did not commit plain error when it accepted Diveroli ’ s plea

. 2.
Next Diveroli argues that the government ’ s failure to include in the plea agreement the po ssibility of sentence enhancements, coupled with its advocacy for

3 In Nov ember 2006 § 2J1.7 was deleted from the Guidelines and § 3C1.3 was added. See U SS G App. C, Amend. 684. Like the former § 2J1.7, § 3C1 .3 provides for a 3

- level increase in the offense level if a statutory sentencing enhancement under 18 U.S.C. § 3147 applies to the defendant’s case

. U SSG § 3C1 .3

. Amendment 684 to the Sentencing Guidelines explains that the enhancement provision was moved from Chapter Two to Chapter Three in order to ensure that the “ enhancement is not overlooked and is consiste nt with other enhancements in Chapter Three, all of which apply to a broad range of offenses. ” U SSG App. C, Amend. 684 comment

. (backg’d.). Case: 11-14241 Date Filed: 01/30/2013 Page: 8 of 129 imposition of certain sentencing provisions, was a breach of the agreement

. Diveroli contends that had he known he would be subje ct to sentence enhancements , he would have gone to trial. Because Diveroli also raises this argument for the first time on appeal, we review whether the government breached the plea agreement for plain error only.
See United States v. Romano , 314 F.3d 127 9, 1281 (11th Cir. 2002). “ The government is bound by any material promises it makes to a defendant as part of a plea agreement that induces the defendant to plead guilty. ” United States v. Taylor , 77 F.3d 368, 370 (11th Cir. 1996). “ Whether the government violated the agreement is judged according to the defendant ’ s reasonable understanding a t the time he entered his plea. ” United States v. Boatner , 966 F.2d 1575, 1578 (11th Cir. 1992)

. However, even if it is arguable that the government misled Diveroli and
that Diveroli plausibly misunderstood the plea agreement, “ we cannot enforce an agreement that was never agreed on with specificity. ” United States v. Al

- Arian , 514 F.3d 1184, 1193 (11th Cir. 2008) (quotation marks omitted ).
T he plea agreement here did not address any sentencing enhancements under the Guidelines. Nor did it address the possibility of a § 3147 sentence. On the other hand, the agreement include d an integration clause stating expressly that the

“ plea agreement constitut es the entire agreement between the government and the defendant ” and that “ no other promises, agreements, or representations exist. ” The

Case: 11-14241 Date Filed: 01/30/2013 Page: 9 of 1210 omission of any reference to enhancements, coupled with the integration clause means that Diveroli could not reasonably assume that the government would not
seek sentence enhancements , if they applied

. See Al

- Arian , 514 F.3d at 119 2

– 93 (noting the inclusion of an integration clause in the plea agreement to reject the appellant ’ s argument that the government implicitly agreed to certain terms). 4 Therefore, the government did not breach the terms of the plea agreement.
3. Finally, Diveroli argues that, for a number of reasons, his sentence must be vacated even if his conviction is affirmed. These arguments incl ude that : (1) the
district court ’ s imposition of a § 3147 sentence violated his Fifth and Sixth Amendment rights under Apprendi v. New Jersey ; 530 U.S. 466, 120 S. Ct. 2348 (2000) ; ( 2 ) § 3147 is unconstitutionally vague; ( 3 ) the § 3147 sentence was illegal because he was never charged with violating § 3147 and did not plead guilty to it; ( 4 ) the court erred in its construction of § 3147 and USSG § 3C1.3; and (5) the government manipulated and concealed facts in order to argu e for the imposition
of a § 2K2.1(a)(4)(B) enhancement to his base offense level. Normally, we review the district court ’ s interpretation of the Guidelines de

novo and its factual findings for clear error. United States v. Jordi , 418 F.3d 1212,

4 This conclusion is further supported by the agreement ’ s reserve clause, expressly obligating the government “ to report to the Court and the United States Probation Office ” all relevant information concerning the “ the totality of [Diveroli ’ s] criminal activities, . . . not limited to the count to which [Diveroli] pleads. ”

Case: 11-14241 Date Filed: 01/30/2013 Page: 10 of 1211 1214 (11th Cir. 2005). C onstitutional challenges to a sentence are also ordinarily reviewed de novo

. United States v. Chau , 426 F.3d 1318, 1321 (11th Cir. 2005). Here, h owever, the government asserts the appeal waiver in the plea agreement as a bar to review of Diveroli’s claim s . W e will therefore first review the validity of the appeal waiver

. See United States v. Johnson , 541 F.3d 1064, 1066 (11th Cir. 2008). We review the validity of a n appeal waiver de novo

. Id. A n appeal waiver will be enforced if it was made knowingly and voluntarily. See id. 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 ensures that “ the defendant otherwise understood the full significance of the waiver. ” See i d. Here, the record indicates that the Magistrate Judge specifically questioned Diveroli about the waiver during the plea colloquy and that Diveroli understood its full significance

. T he plea agreement spelled out the waiver with specificity , and
the M agistrate Judge explained the waiver a nd its exceptions to Diveroli when he changed his plea to guilty

. Diveroli affirme d that he underst ood the waiver, and ensured the Magistrate Judge that he intended to give up his right to appeal his
sentence on all grounds except that (1) his sentence exceeded his applicable guidelines range as determined by the district c ourt ; (2) his sentence exceeded the

Case: 11-14241 Date Filed: 01/30/2013 Page: 11 of 1212 statutory maximum penalty for his offense ; (3) his sentence violated the Eighth Amendment; or (4) the government appealed his sentence. B e cause Diveroli ’ s waiver was made knowingly and voluntarily , and none of his arguments regarding his sentence satisfy its exceptions , he is barred from raising these challenges on appeal.
C. CONCLUSION For these reasons, Diveroli ’ s conviction and sentence is AFFIRMED. Case: 11-14241 Date Filed: 01/30/2013 Page: 12 of 12