USA v. Julian Arce

Filing

Opinion issued by court as to Appellant Julian Arce. Decision: Dismissed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 17-10565

Date Filed: 01/10/2018

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10565
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20400-KMW-6
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JULIAN ARCE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 10, 2018)
Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Julian Arce pled guilty to conspiracy to import into the United States more
than one kilogram of heroin and more than five kilograms of cocaine with the

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intent to distribute, in violation of 21 U.S.C. § 963. The district court calculated the
applicable advisory Sentencing Guidelines range to be 57-71 months. The district
court also found that Mr. Arce met the “safety valve” requirements of U.S.S.G.
§5C1.2(a)(1)-(5), meaning that he would not be subject to the minimum statutory
sentence of ten years’ imprisonment. See 21 U.S.C. § 960(b)(1)(A). See also 18
U.S.C. § 3553(f)(1)-(5); U.S.S.G. §5C1.2(a).
Under the plea agreement, the government agreed to recommend that Mr.
Arce be sentenced at the low end of the advisory guidelines range. Also in keeping
with the plea agreement, the government filed a motion pursuant to §5K1.1 of the
guidelines requesting that the court grant a downward departure for Mr. Arce’s
sentence, based on the substantial assistance he provided the government in its
investigation and prosecution of other persons. The government requested the court
reduce Mr. Arce’s sentence by 15 percent to 48 months.
The district court granted the government’s §5K1.1 motion, and sentenced
Mr. Arce to 38 months’ imprisonment. In explaining its reduction of the sentence
to 38 months, the district court noted that under §3553, Mr. Arce had not fled
during his years of cooperation with the government. It also emphasized the danger
that Mr. Arce’s family faced in Columbia due to his cooperation with the
government, which is one factor for the court to consider when deciding on a
§5K1.1 motion. See U.S.S.G. §5K1.1(a)(4).
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Mr. Arce now appeals his sentence, arguing that the district court ignored
the other factors identified in §5K1.1, and that it plainly erred in so doing. He
argues that had the court considered all of the §5K1.1 factors, it would have
reduced his sentence even further.
As an initial matter, however, we must decide whether Mr. Arce waived his
right to appeal his sentence, which would preclude us from addressing the merits
of his challenge to his sentence. The plea agreement which Mr. Arce signed, and
which the district court accepted, contained a sentence appeal waiver.
We conclude that Mr. Arce knowingly and voluntarily waived his right to
appeal his sentence and the manner in which the sentence was imposed, that the
waiver applies to Mr. Arce’s appeal, and that none of the exceptions to the waiver
apply. Accordingly, we dismiss Mr. Arce’s appeal.
I
We review the validity of a sentence appeal waiver de novo. See United
States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver
will be enforced if it was executed knowingly and voluntarily. See United States v.
Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). To establish that a waiver was
made knowingly and voluntarily, the government must show that either “(1) the
district court specifically questioned the defendant about the waiver during the plea
colloquy, or (2) the record clearly shows that the defendant otherwise understood
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the full significance of the waiver.” United States v. Grinard-Henry, 399 F.3d
1294, 1296 (11th Cir. 2005). The district court must clearly convey to the
defendant the circumstances under which he is giving up the right to appeal. See
Bushert, 997 F.2d at 1352-53. A valid appeal waiver “includes the waiver of the
right to appeal difficult or debatable issues or even blatant error.” Grinard-Henry,
399 F.3d at 1296. Additionally, there is “a strong presumption that the statements
made during the [plea] colloquy are true.” United States v. Medlock, 12 F.3d 185,
187 (11th Cir. 1994).
II
In the provision at issue in the plea agreement, Mr. Arce waived his rights
“to appeal any sentence imposed” or “to appeal the manner in which the sentence
was imposed,” unless the sentence exceeded the statutory maximum, or was the
result of an upward departure or variance, or the government appealed. Mr. Arce is
specifically appealing his 38-month sentence and the manner in which the district
court applied §5K1.1 to the government’s motion. Because none of the exceptions
apply, there can be no question that, if the waiver is valid, it applies to the present
appeal, and Mr. Arce’s appeal must be dismissed.
This Circuit has “consistently enforced knowing and voluntary appeal
waivers according to their terms,” particularly where the defendant acknowledges
the waiver in a plea agreement, the district court specifically questions the
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defendant during the plea colloquy about the appeal waiver, and the court
adequately explains the significance of the waiver and confirms that the defendant
understands the full significance of the waiver. See United States v. Bascomb, 451
F.3d 1292, 1294 (11th Cir. 2006) (collecting cases). See also Johnson, 541 F.3d at
1066; United States v. Frye, 402 F.3d 1123, 1127-29 (11th Cir. 2005); GrinardHenry, 399 F.3d at 1296; Williams v. United States, 396 F.3d 1340, 1341-42 (11th
Cir. 2005); United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001); United
States v. Pease, 240 F.3d 938, 942 (11th Cir. 2001); United States v. Howle, 166
F.3d 1166, 1168-69 (11th Cir. 1999); United States v. Benitez-Zapata, 131 F.3d
1444, 1446 (11th Cir. 1997); United States v. Buchanan, 131 F.3d 1005, 1007-09
(11th Cir. 1997).
Many of the sentence appeal waivers in these cases are nearly identical to
the one in Mr. Arce’s plea agreement, with nearly the same exceptions and
limitations. Here, Mr. Arce signed the plea agreement, as did his counsel. The plea
agreement not only contained the sentence appeal waiver itself, but also a
statement confirming that “[b]y signing this agreement, the defendant
acknowledges that the defendant has discussed the appeal waiver set forth in this
agreement with the defendant’s attorney.”
Beyond that, at the change-of-plea hearing the district court specifically
questioned Mr. Arce concerning the plea agreement and the sentence appeal
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waiver. Mr. Arce, who was aided by an interpreter at the hearing, confirmed that
he had signed the plea agreement, that the plea agreement had been translated into
Spanish for him prior to him signing it, that he had an adequate opportunity to
discuss it with his counsel, and that he understood fully the obligations it imposed
on him. The district court alerted Mr. Arce to the specific appeal waiver provision
and explained that he was giving up his right to appeal his sentence to a higher
reviewing court. The district court also reviewed the four circumstances where the
appeal waiver would not apply. As to all of this, Mr. Arce confirmed his
understanding.
Based on the plea agreement and the change-of-plea colloquy between Mr.
Arce and the district court, the government has established that Mr. Arce’s appeal
waiver was entered into knowingly and voluntarily. The district court specifically
questioned Mr. Arce about the waiver during the plea colloquy, and the record
clearly shows that he otherwise understood the full significance of the waiver. See
Bushert, 997 F.2d at 1350-51. Mr. Arce has provided us no reason to reject the
“strong presumption that the statements made during the [plea] colloquy are true.”
Medlock, 12 F.3d at 187.

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III
Mr. Arce knowingly and voluntarily waived his right to appeal his sentence
and the manner in which the sentence was imposed, and none of the exceptions to
this waiver apply. Accordingly, Mr. Arce’s appeal is dismissed.
DISMISSED.

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