USA v. Javier Noa

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13400
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER NOA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cr-20135-DLG-1
____________________
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2 Opinion of the Court 22-13400
Before WILSON, BRANCH, and L UCK , Circuit Judges.
PER CURIAM:
Javier Noa pleaded guilty, pursuant to a written plea
agreement containing a sentence-appeal waiver, to conspiracy to
possess with intent to distribute a controlled substance, in violation
of 21 U.S.C. § 846.1 The district court sentenced Noa to 45 months’
imprisonment with credit for time served, followed by 3 years’
supervised release. Noa appeals, arguing that the district court
erred in (1) imposing a guidelines enhancement under U.S.S.G.
§ 2D1.1(b)(2) for making a credible threat of violence, and
(2) finding that the alleged credible threat of violence qualified as
relevant conduct under U.S.S.G. § 1B1.3(a)(1). The government
moves to dismiss this appeal pursuant to the sentence-appeal
waiver in Noa’s plea agreement. In response, Noa argues that the
appeal waiver is unenforceable because it is ambiguous for three
reasons: (1) the terms of the waiver were not explained adequately
to him; (2) he was unaware that the applicable guidelines range was
41 to 51 months’ imprisonment and not the lower range he had
requested in his objection to the presentence investigation report;
and (3) in pronouncing his sentence, the district court stated that
Noa had the right to appeal his sentence and the government did
not object. After review, we conclude that the sentence-appeal
1 In exchange for Noa’s plea to this count, the government agreed to dismiss
the four remaining counts against him.
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22-13400 Opinion of the Court 3
waiver is valid and enforceable. Therefore, we grant the
government’s motion to dismiss.
“We review the validity of a sentence appeal waiver de
novo.”
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir.
2008). We enforce appeal waivers that are made knowingly and
voluntarily.
See United States v. Bascomb, 451 F.3d 1292, 1294
(11th Cir. 2006);
United States v. Bushert, 997 F.2d 1343, 1350–51
(11th Cir. 1993). To demonstrate 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 makes clear that
the defendant otherwise understood the full significance of the
waiver.
Bushert, 997 F.2d at 1351.
Noa’s plea agreement contained the following appeal
waiver:
the defendant hereby waives all rights conferred by
Sections 3742 and 1291 to appeal any sentence
imposed, including any restitution order, or to appeal
the manner in which the sentence was imposed,
unless the sentence exceeds the maximum permitted
by statute or is the result of an upward departure
and/or an upward variance from the advisory
guideline range that the Court establishes at
sentencing. The defendant further understands that
nothing in this agreement shall affect the
government’s rights and/or duty to appeal as set
forth in Title 18, United States Code, Section 3742(b)
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4 Opinion of the Court 22-13400
and Title 28, United States Code, Section 1291.
However, if the United States appeals the defendant’s
sentence pursuant to Sections 3742(b) and 1291, the
defendant shall be released from the above waiver of
appellate rights.
Noa initialed each page of the agreement and signed the plea
agreement.
At the change-of-plea hearing, the district court confirmed
that the entire plea agreement was read to Noa in his native
language of Spanish and that he understood it and signed it. The
district court explained that Noa faced a maximum sentence of 20
years’ imprisonment. The district court explained that, after the
plea hearing, the United States Probation Office would prepare a
presentence investigation report (PSI) on Noa, that Noa could
object to the information in the report if he disagreed with any of
it, and that the report would be used to determine Noa’s advisory
guidelines range. The district court explained that it could impose
a sentence more or less severe than the guidelines range and could
be up to the statutory maximum. Noa confirmed that he
understood. The district court then explained that any sentencing
projections Noa may have received from his counsel were just
estimates, and the district court would make the “final
determination . . . at the time of sentencing.” Noa stated that he
understood. The district court then explained to Noa that, by
pleading guilty, he was giving up his right to appeal his sentence
unless the sentence exceeded the statutory maximum or the
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22-13400 Opinion of the Court 5
sentence was an upward departure or upward variance. Noa
confirmed that he understood. Thereafter, the district court found
that both the appeal waiver and Noa’s guilty plea were knowingly
and voluntarily entered.
Noa raised several objections to the PSI, which the district
court addressed at sentencing. In particular, the district court
sustained one of Noa’s objections and then asked the probation
office for a revised guidelines range. The probation office stated
that Noa’s revised guidelines range was 41 to 51 months’
imprisonment. Noa’s counsel then requested that the court
impose “the lowest amount,” “which would be the 41 months,
rather than the top end of the 51 months.” The district court
imposed a sentence of 45 months’ imprisonment to be followed by
three years of supervised release. Finally, the district court stated,
albeit erroneously, that Noa had a right to appeal the sentence
imposed.
Noa’s argument that the sentence-appeal waiver is
unenforceable because it was ambiguous and was not explained to
him adequately in open court is refuted by the record. The appeal
waiver stated unequivocally that Noa was waiving “all rights” to
appeal his sentence unless one of the following occurred—(1) if the
sentence exceeded the statutory maximum, (2) if the sentence was
the result of “an upward departure . . . from the advisory guideline
range that the [c]ourt establishes at sentencing, or (3) if the
sentence was the result of “an upward variance from the advisory
guideline range that the [c]ourt establishes at sentencing.” Noa
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6 Opinion of the Court 22-13400
initialed each page of the plea agreement, including the appeal
waiver, signed the agreement, and confirmed during the plea
colloquy that the agreement was read to him and that he
understood it. The district court also orally reviewed the appeal
waiver with Noa during the plea colloquy and he stated he
understood.
Likewise, Noa’s argument that he did not understand that
the guidelines range would be calculated by the district court and
that he could not appeal it is belied by the record. The plea
agreement stated throughout that the guidelines range would be
determined by the district court, and the district court explained
during the plea colloquy that it would make the final guidelines
determination at sentencing and that Noa could be sentenced
above or below that range up to the statutory maximum, and Noa
stated that he understood.
Similarly, Noa’s contention that he did not understand that
the applicable guidelines range was 41 to 51 months’ imprisonment
as opposed to the lower range of 33 to 41 months’ he had argued
was appropriate is refuted by the record. The district court
addressed each of Noa’s objections to the PSI individually,
explaining its reasoning in great detail. The district court sustained
Noa’s last objection and the probation officer stated the revised
guidelines range on the record. Noa did not object or ask for any
clarification. Noa’s counsel then requested that the court impose
“the lowest amount” under the guidelines, “which would be the 41
months, rather than the top end of the 51 months.” Noa did not
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22-13400 Opinion of the Court 7
express any confusion or ask for clarification. Thus, the record
establishes that Noa was aware that, with the exception of one,
each of his objections to the PSI had been overruled and that his
guidelines range was 41 to 51 months’ imprisonment.
Finally, although the district court stated erroneously at
sentencing that Noa had the right to appeal his sentence, it is well-
established that this statement does not affect the validity of the
sentence-appeal waiver.
See Bascomb, 451 F.3d at 1297 (explaining
that an enforceable appeal waiver “cannot be vitiated or altered by
comments the court makes during sentencing”).
Consequently, the record establishes that Noa’s sentence-
appeal waiver was knowingly and voluntarily made and is
enforceable.
Bushert, 997 F.2d at 1351;
see also United States v.
Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001) (enforcing an appeal
waiver where “the waiver provision was referenced during [the
defendant’s] Rule 11 plea colloquy and [the defendant] agreed that
she understood the provision and that she entered into it freely and
voluntarily”).
Because Noa’s claims concerning the guidelines
enhancements do not fall within any of the limited exceptions to
the valid sentence-appeal waiver, the waiver forecloses his appeal.
Accordingly, we GRANT the government’s motion to dismiss.
APPEAL DISMISSED.
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