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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13683 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-20073-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YULIER BLANCO PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 27, 2018)
Before WILLIAM PRYOR, GRANT and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, defendant Yulier Blanco Perez appeals his convictions
and 51-month total sentence for conspiracy to commit access device fraud, use of Case: 17-13683 Date Filed: 12/27/2018 Page: 2 of 20
unauthorized access devices, possession of fifteen or more unauthorized access
devices, and aggravated identity theft. On appeal, Perez argues that the district
court plainly erred in accepting his guilty plea and in calculating his advisory
guidelines range at sentencing. After review, we affirm Perez’s convictions and
dismiss Perez’s appeal of his sentence based on the sentence-appeal waiver in his
plea agreement.
I. BACKGROUND
A. Offense Conduct
On five occasions between July 28, 2016 and October 13, 2016, Perez and
two co-conspirators used fraudulent driver’s licenses and credit cards with account
numbers issued to other persons to purchase stone tile, home improvement
materials, and other items of value. During these fraudulent transactions, the
conspirators successfully used seven credit card account numbers, and attempted to
use another five credit card account numbers that were declined. In total, the
conspirators fraudulently purchased $166,782.76 in materials from the stone tile
stores.
The manager at Haifa Limestone alerted law enforcement to some of these
fraudulent purchases at their West Palm Beach showroom. An investigation
revealed that Perez had exchanged 18 stolen credit card numbers by cell phone text
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messaging with one of his co-conspirators. Some of these stolen credit card
numbers were used in the fraudulent transactions at Haifa Limestone.
B. Plea Agreement
In a plea agreement, Perez pled guilty to five counts. The plea agreement
identified the crime and statute for each count, as follows:
The Defendant agrees to plead guilty to Counts 1, 2, 6, 10, and 11 of the Indictment, which charge the Defendant with conspiracy to commit access device fraud, in violation of Title 18, United States Code, Section 1029(b)(2) (Count 1); use of one or more unauthorized access devices, in violation of Title 18, United States Code, 1029(a)(2) (Count 2); aggravated identity theft, in violation of Title 18, United States Code, Section 1028A(a)(1) (Count 6); conspiracy to commit access device fraud, in violation of Title 18, United States Code, Section 1029(b)(2) (Count 10); and possession of fifteen or more unauthorized access devices, in violation of Title 18, United States Code, Section 1029(a)(3) (Count 11).
In exchange, the government agreed to dismiss the two remaining counts of
aggravated identity theft against Perez, to recommend a decrease in Perez’s offense
level for acceptance of responsibility if certain conditions were met, and to move
for a downward departure if, in its sole discretion, Perez’s cooperation warranted
one. The plea agreement also contained a sentence-appeal waiver.
Both Perez and his attorney signed the plea agreement. Perez also signed an
accompanying factual proffer, which outlined in detail the conduct of Perez and his
co-conspirators.
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C. Plea Hearing
Because Perez challenges the adequacy of the Rule 11 colloquy, we review
what happened at the change-of-plea hearing. The district court placed Perez
under oath and ensured that he understood that he could be prosecuted for perjury
if he gave false statements.1 In response to the district court’s inquiries, Perez
indicated that he was 34 years old, he had obtained his GED, he did not suffer from
any mental or emotional illnesses, he had not taken any drugs or alcohol during the
preceding 48 hours, and he had never been treated for an addiction.
Perez also acknowledged that he had read and discussed the plea agreement
with his attorney before signing it. The district court reviewed on the record
portions of the plea agreement, including the appeal-waiver provision.
Perez acknowledged that he was not being forced or coerced into pleading
guilty, that he had not been made any promises or assurances other than those in
the plea agreement, and that he was pleading guilty of his own free will because he
was in fact guilty of the charged offenses.
The district court then informed Perez that he was pleading guilty to felony
offenses and that he would lose valuable rights as a result of his guilty pleas,
including the rights to vote, hold public office, serve on a jury, or possess a
1 An interpreter was present and interpreted the proceedings for Perez. 4 Case: 17-13683 Date Filed: 12/27/2018 Page: 5 of 20
firearm. The district court also stated that the pleas would result in Perez’s
deportation to his native Cuba. Perez stated that he understood.
Importantly, the district court then recited the extensive factual proffer,
which Perez had signed, almost verbatim. With regard to Perez’s conduct
supporting the first access device fraud conspiracy charged in Count 1, the district
court recited:
[F]rom July 28, 2016, through October 27, 2016, in Palm Beach, Broward, and Miami-Dade Counties, and elsewhere, you and your codefendants, Silvio Lopez Cuellar and David Machado Frometa, conspired with each other and with other persons and knowingly did, with the intent to defraud, traffic in and use account numbers issued to other persons to purchase stone tile, home improvement materials, and other items of value, and obtained items of value aggregating $1,000 or more during that time period. Your conduct affected interstate and foreign commerce.
As to Perez’s conduct supporting the underlying use offense charged in Count 2
and the aggravated identity theft charged in Count 6, the district court recited:
On July 27, 2016, you entered Atlantic Stone in Broward County, identified yourself as Ariel, Jr., selected stone tile for purchase, and advised an Atlantic Stone employee your father would call the store to pay for the order. On July 28, 2016, a coconspirator identifying himself [as] Ariel’s father, called Atlantic Stone and paid approximately $15,900 for the stone tile that you had selected the day before using a credit card account number ending in 0688, registered to M.A. On September 28, 2016, you contacted Haifa Limestone in Palm Beach County and purchased $15,582 worth of stone tile by a cellular telephone text messaging from your known cellular telephone number in the name of Ariel Sosa Viamontes, using credit card account numbers ending in 6547 and 1616, registered to V. J. and E. G. respectively.
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Victims V. J. and E. G. did not authorize you to possess or use their credit card account numbers, and you knew the credit card account numbers issued to V. J. and E. G. belonged to real persons. On September 29, 2016, you, again, contacted Haifa Limestone, and purchased approximately $27,560 worth of stone tile by cellular telephone text messaging from your known cellular phone number in the name of Ariel Sosa Viamontes, using credit card account number ending in 3867, registered to R. A. Victim R. A. did not authorize you to possess or use his or her credit card account number, and you knew the credit card account number issued to R. A. belonged to a real person.
As to Perez’s conduct supporting the second access device fraud conspiracy
charged in Count 10 and the underlying possession offense charged in Count 11,
the district court recited:
From September 22nd, 2016, through October 27, 2016, in Palm Beach, Broward, and Miami-Dade Counties, you and codefendant, Silvio Lopez Cuellar conspired to and knowingly did, with the intent to defraud, possess 15 or more credit card numbers issued to other persons, that conduct affecting interstate and foreign commerce. On September 22nd, 2016, Silvio Lopez Cuellar transferred three credit card account numbers ending in 9845, 0111, and 8080, to you by cellular telephone text messaging, and you maintained possession of those numbers in your cellular phone. On October 20, 2016, Silvio Lopez Cuellar transferred five credit card account numbers ending in 7688, 7796, 0270, 1563, and 3170, to you by cellular phone text messaging, and you maintained possession of those numbers in your cellular phone. On October 27, 2016, you possessed 19 credit card account numbers in your cellular phone that Silvio Lopez Cuellar had transferred to you by cellular telephone text messaging. You knew the 19 credit card account numbers you maintained in your possession belonged to real people, and you did not have the authorization of those people to possess the numbers.
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After the full recital of the factual proffer, Perez agreed that all of the factual
proffer was true. Perez’s attorney confirmed that he was satisfied that Perez
understood his rights and the rights he was waiving, and that the factual basis was
sufficient.
Perez then entered guilty pleas to Counts 1, 2, 6, 10, and 11. The district
court found that Perez was competent and capable of entering informed pleas, that
he was aware of the nature of the charges and consequences of his pleas based on
conversations with his attorney and the plea colloquy, that the pleas were knowing
and voluntary, and that the factual basis was sufficient to establish the essential
elements of the offenses. The district court therefore accepted Perez’s pleas and
adjudicated him guilty.
D. Sentencing
Perez’s presentence investigation report (“PSI”) grouped Counts 1, 2, 10 and
11 and recommended, inter alia, a two-level increase in Perez’s offense level under
U.S.S.G. § 2B1.1(b)(11)(B)(i), because the offense conduct involved the
production of, or trafficking in, unauthorized or counterfeit access devices. The
PSI ultimately calculated a total offense level of 17.
With a criminal history category of III, Perez’s advisory guidelines range
was 30 to 37 months’ imprisonment for Counts 1, 2, 10 and 11, plus a mandatory
consecutive 24-month sentence for Count 6. The PSI identified the statutory
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maximum sentences of 5 years for Counts 1 and 10 and 10 years for Counts 2 and
Count 11. See 18 U.S.C. § 1029(b)(2),(c)(1)(A)(i).
Perez objected to the PSI’s inclusion of the two-level increase under
U.S.S.G. § 2B1.1(b)(11)(B)(i), arguing that he personally did not produce or re-
encode any of the credit cards used in the conspiracy. Perez contended that his
total offense level should be 15 and his resulting guidelines range should be 24 to
30 months’ imprisonment. The government responded that the re-encoding of the
credit cards by Perez’s co-conspirators was reasonably foreseeable relevant
conduct.
At the July 2017 sentencing hearing, the district court overruled Perez’s
objection to the § 2B1.1(b)(11)(B)(i) offense-level increase. The district court
found that Perez’s total offense level was 17 and that, with a criminal history
category of III, his advisory guidelines range for Counts 1, 2, 10 and 11 was 30 to
37 months.
Following argument and allocution, the district court considered the 18
U.S.C. § 3553(a) factors and sentenced Perez to 37 months on Counts 1, 2, 10 and
11, to be served concurrently, and to a 24-month consecutive sentence on Count 6.
Perez reiterated his objection to the two-level guidelines enhancement. At no point
before or during the sentencing hearing did Perez give any indication he wished to
withdraw his guilty plea.
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II. GUILTY PLEA
A. Plain Error Review
On appeal, Perez contends that the district court accepted his guilty plea
without complying with Rule 11 of the Federal Rules of Criminal Procedure.
Because Perez failed to raise this Rule 11 argument in the district court, we review
it for plain error. See United States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir.
2005).
To establish plain error, a defendant must show (1) an error, (2) that is plain,
and (3) that affected his substantial rights. Id. at 1019. If the defendant satisfies
these three conditions, we may exercise our discretion to recognize the error if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Id. To establish that an unpreserved Rule 11 error affected his substantial rights,
the defendant must show “‘a reasonable probability that, but for the error, he would
not have entered the plea.’” United States v. Brown, 586 F.3d 1342, 1345 (11th
Cir. 2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.
Ct. 2333, 2340 (2004)); see also United States v. Rodriguez, 398 F.3d 1291, 1299
(11th Cir. 2005) (explaining that the Dominguez Benitez Court’s “affected the
outcome” requirement is a way to show the third prong of the plain error test).
Further, in considering whether there was error and whether it affected substantial
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rights, “we may consider the whole record, not just the plea colloquy.” Moriarty,
429 F.3d at 1020 n.4.
B. Perez’s Rule 11 Claim
On appeal, Perez claims his plea was not knowing because during the plea
colloquy the district court: (1) did not discuss the elements of the charges; and (2)
did not confirm on the record that Perez and his attorney had reviewed or discussed
the indictment or the charges.
The district court must ensure that a defendant’s guilty plea is knowing and
voluntary. United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000).
To that end, Rule 11 requires the district court, before accepting the defendant’s
guilty plea, to address the defendant personally in open court and inform the
defendant of, and make sure he understands, certain matters. See Fed. R. Crim. P.
11(b)(1). Rule 11 explicitly requires the district court to cover “the nature of each
charge to which the defendant is pleading.” Fed. R. Crim. P 11(b)(1)(G).
“[T]here is no one mechanical way” or “rigid formula” for how the district
court must inform the defendant of the nature of the charges. United States v.
Wiggins, 131 F.3d 1440, 1443 (11th Cir. 1997); United States v. Presendieu, 880
F.3d 1228, 1238 (11th Cir. 2018). And, “Rule 11 does not specify that a district
court must list the elements of the offense.” Presendieu, 880 F.3d at 1238.
Instead, each plea colloquy is assessed individually and may be done in different
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ways based on various factors, such as the simplicity or complexity of the charges
and the defendant’s sophistication and intelligence. United States v. Camacho, 233
F.3d 1308, 1314 (11th Cir. 2000); Wiggins, 131 F.3d at 1443.
At bottom, the district court must ensure that three core concerns underlying
Rule 11 are met: (1) the guilty plea is free from coercion; (2) the defendant
understands the nature of the charges; and (3) the defendant is aware of the direct
consequences of pleading guilty. Camacho, 233 F.3d at 1314. “This Court has
upheld plea colloquies that fail to address an item expressly required by Rule 11 so
long as the overall plea colloquy adequately addresses those three core concerns.”
United States v. Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003). Perez does not
contend he was coerced or unaware of the consequences of pleading guilty.
Rather, his claim is only that the district court did not adequately advise him of the
nature of the charges.
Based on the record as a whole, we conclude that Perez understood the
nature of the charges against him. First, the district court confirmed that Perez’s
attorney, with the help of an interpreter, had read the entire plea agreement to him,
and that Perez had fully discussed the plea agreement with his attorney. The plea
agreement identified the charge in each count and cited the relevant statute of
conviction.
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Second, and perhaps most importantly, the detailed factual proffer, signed by
Perez and his attorney, largely tracked the language of the indictment and
effectively incorporated all of the elements of Perez’s offenses. See Presendieu,
880 F.3d at 1239 (noting that “in some cases, a factual proffer may set forth in
such detail the facts of the crime that it effectively incorporates the substance of
the elements of the offense”). Moreover, during the plea colloquy, the district
court recited the full proffer almost verbatim and out loud to Perez and the
interpreter.
For example, Perez pled guilty to Count 1, which charged Perez with
conspiring to use and traffic in unauthorized access devices, namely credit card
account numbers, in violation of 18 U.S.C. § 1029(b)(2), and Count 2, which
charged him with actually using the unauthorized access devices, in violation of 18
U.S.C § 1029(a)(2).2 A defendant commits access device fraud conspiracy when
he conspires with two or more persons to the commit one of the substantive access
device offenses in 18 U.S.C. § 1029(a). 18 U.S.C. § 1029(b)(2). In Perez’s case,
the substantive “use” offense required proof that “the defendant : (1) ‘knowingly’
used ‘one or more unauthorized access devices,’ (2) ‘with intent to defraud,’ (3) to
2 An “access device” includes cards, codes, account numbers, and other means of account access “that can be used, alone or in conjunction with another access device,” to obtain items of value. 18 U.S.C. § 1029(e)(1). An “unauthorized access device” is “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.” Id. § 1029(e)(3). 12 Case: 17-13683 Date Filed: 12/27/2018 Page: 13 of 20
obtain anything having an aggregate value of ‘$1,000 or more’ during a one-year
period, and (4) such use ‘affect[ed] interstate and foreign commerce.’” United
States v. Klopf, 423 F.3d 1228, 1240 (11th Cir. 2005) (quoting in part 18 U.S.C.
§ 1029(a)(2)) (footnote omitted).
The factual proffer, as recited by the district court, tracked Counts 1 and 2
and stated that Perez and his codefendants had “conspired with each other and with
other persons” to and “knowingly did, with the intent to defraud, traffic in and use
account numbers issued to other persons to purchase . . . items of value aggregating
$1,000 or more” during the conspiracy period and that Perez’s conduct had
“affected interstate and foreign commerce.” The factual proffer further stated that
Perez had used credit card account numbers registered to victims V.J., E.G., and
R.A., that those victims did not authorize Perez to use their credit card account
numbers, and that Perez knew that those credit card account numbers belonged to
real people. In other words, the factual proffer effectively incorporated all the
elements of the offenses charged in Counts 1 and 2.
The same is true for Count 6. To convict a defendant of aggravated identity
theft, “the government must prove that the defendant: (1) knowingly transferred,
possessed, or used; (2) the means of identification of another person; (3) without
lawful authority; (4) during and in relation to a felony enumerated in [18 U.S.C.]
§ 1028A(c),” which includes access device fraud. Presendieu, 880 F.3d at 1240
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(quotation marks omitted); 18 U.S.C. §§ 1028A(c)(4), 1029. An “access device” is
a “means of identification.” 18 U.S.C. § 1028(d)(7)(D). Further, the defendant
must have known that the means of identification he unlawfully used in fact
belonged to another person. Flores-Figueroa v. United States, 556 U.S. 646, 647,
129 S. Ct. 1886, 1888 (2009).
In Count 6, the “means of identification” Perez was charged with using was
victim R.A.’s credit card account number. Perez used the credit card account
numbers during the access device fraud offenses charged in Counts 1 and 2. In this
regard, the district court’s recitation stated that on September 29, 2016, Perez, in
the name of Ariel Sosa Viamontes, purchased $27,560 worth of stone tile from
Haifa Limestone “using credit card account number ending in 3867, registered to
R. A.,” that R.A. “did not authorize [Perez] to possess or use” the credit card
account number, and that Perez “knew the credit card account number issued to
R. A. belonged to a real person.”
Finally, Counts 10 and 11 charged Perez with conspiracy to possess, and the
possession of, fifteen or more unauthorized access devices, respectively. To prove
the object of this conspiracy, the underlying possession offense, the government
was required to show that the defendant “knowingly and with intent to defraud
possess[ed] fifteen or more counterfeit or unauthorized access devices.” 18 U.S.C.
§ 1029(a)(3).
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As to these counts, the district court’s recitation of the factual proffer stated
that between September 22, 2016 and October 27, 2016, Perez and a codefendant
“conspired to and knowingly did, with intent to defraud, possess 15 or more credit
card numbers issued to other persons” and that Perez’s “conduct affect[ed] interest
state and foreign commerce.” The proffer further elaborated that Perez received
from his codefendant via text messaging three credit card account numbers on
September 22, 2016, and another five credit card account numbers on October 20,
2016, and he maintained possession of them in his cell phone. On October 27,
2016, Perez possessed nineteen credit card account numbers in his cell phone that
his codefendant had transferred to him via text messaging. Perez knew that all
nineteen credit card account numbers belonged to real persons and that he did not
have authorization to possess those numbers.
In sum, the factual proffer, which the district court recited to Perez, tracked
the language of the indictment and effectively contained all the elements of each
offense to which Perez pled guilty. Moreover, during the plea colloquy, the district
court confirmed that the factual proffer had been translated into Spanish for Perez
before he signed it. After the district court reviewed the proffer out loud to Perez,
Perez agreed that the facts recited in it were true and would have been proved by
the government had the case gone to trial.
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At no point did Perez indicate any misunderstanding about the nature of the
charges. See Presendieu, 880 F.3d at 1241 (concluding that the defendant
understood the nature of the charges based on the detailed nature of the factual
proffer that “contained all of the elements of his two offenses,” the defendant’s
sophistication and intelligence, and the fact that “he never indicated any
misunderstanding of the charges”). In fact, after reviewing the factual proffer with
Perez, the district court accepted his guilty plea, making the express finding that
Perez was “fully competent and capable of entering an informed plea,” and that
Perez was “aware of the nature of the charges and the consequences of his plea
based upon his conversations with his attorney and the colloquy before the Court.”
Perez has not shown that the district court’s explicit fact finding was clearly
erroneous. See Presendieu, 880 F.3d at 1241; Wiggins, 131 F.3d at 1443.
Further, the record indicates that Perez had a GED, did not suffer from any
mental infirmity, and was familiar with the criminal justice process, having twice
before been convicted under state law of fraudulent use of credit cards. Perez had
no difficulty understanding the district court during the plea proceedings.
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Under the circumstances and given that the detailed factual proffer in effect
covered the elements of the offenses, Perez’s express and unreserved consent to the
proffer shows that he understood the nature of the charges against him. 3
D. Affects Substantial Rights
Alternatively, even assuming arguendo that the district court committed a
Rule 11(b)(1)(G) error that was plain, Perez did not establish that the error affected
his substantial rights. This is so because Perez does not assert, much less prove,
that he wishes to withdraw his guilty pleas; nor does he claim that, but for the Rule
11 error, he would not have pled guilty. See Dominguez Benitez, 542 U.S. at 83,
124 S. Ct. at 2340 (requiring the defendant to show a reasonable probability that he
would not have pled guilty absent the Rule 11 error). To the contrary, Perez’s
appeal brief asks this Court to vacate his guilty plea and sentence “and in the event
the Defendant continues to be inclined to enter a guilty plea,” to direct the district
court to conduct a new plea hearing and sentencing.
We note also that Perez received a substantial benefit from his guilty pleas.
The government dropped two counts of aggravated identity theft, which carried
mandatory consecutive two-year prison terms and would have almost doubled his
3 Because “[t]he task of performing a Rule 11 colloquy is important,” we, like this Court in Presendieu, encourage judges to take advantage of Federal Judicial Center’s Benchbook for U.S. District Court Judges, “which contains sections on such topics as taking guilty pleas.” Presendieu, 880 F.3d at 1242 n.5. 17 Case: 17-13683 Date Filed: 12/27/2018 Page: 18 of 20
sentence had he proceeded to trial and been convicted by the jury. See 18 U.S.C.
§ 1028A(a)(1). In sum, Perez has failed to carry his burden to show plain error
that affected his substantial rights.
III. SENTENCING CLAIM
Perez argues that the district court plainly erred by increasing his offense
level by two levels under U.S.S.G. § 2B1.1(b)(11)(B)(i) because he “produced”
unauthorized access devices. For the reasons that follow, we agree with the
government that Perez’s sentencing claim is barred by his sentence-appeal waiver.
We review de novo the validity of a sentence appeal waiver. United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver will
be enforced if it was made knowingly and voluntarily. Id. Establishing a knowing
and voluntary waiver requires showing that either: (a) the district court specifically
questioned the defendant about the waiver during the plea colloquy; or (b) the
record makes clear that the defendant otherwise understood the full significance of
the waiver. Id. A valid appeal waiver bars difficult or debatable legal issues or
even blatant error. United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.
Here, the sentence appeal waiver in Perez’s plea agreement is valid and
enforceable. In the plea agreement, Perez acknowledged that he understood that he
had the right to appeal his total sentence and restitution order and waived that right
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unless: (1) his total sentence exceeded his guidelines range as established by the
district court; (2) his sentences exceeded the applicable statutory maximum
penalties; or (3) the government appealed the total sentence. The appeal waiver
provision also contained an acknowledgement that Perez had discussed it with his
attorney.
During the plea colloquy, the district court specifically informed Perez of
right to appeal, the sentence-appeal waiver provision in his plea agreement, and the
exceptions to the waiver. In response, Perez indicated that he understood. Perez
also indicated that he had discussed the sentence-appeal waiver with his attorney
and that he had entered it knowingly and voluntarily.
First, Perez’s 37-month total sentence for Counts 1, 2, 10 and 11 does not
exceed Perez’s advisory guidelines range of 30 to 37 months, as determined by the
district court. Perez’s 24-month sentence for Count 6 was the advisory guidelines
sentence for that count. Therefore, his sentences do not exceed advisory guidelines
ranges as determined by the district court. Second, Perez’s sentences do not
exceed their applicable statutory maximums. Perez’s concurrent 37-month
sentences are below the 5-year statutory maximum for Counts 1 and 10 and below
the 10-year statutory maximum for Counts 2 and Count 11. Perez’s 24-month
consecutive sentence for Count 6 is the mandatory minimum term required by
statute and below the statutory maximum of life. Third, the government did not
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appeal. Accordingly, none of the exceptions to Perez’s sentence-appeal waiver
apply, and we must dismiss Perez’s sentencing claim.
For the reasons discussed above, we affirm Perez’s convictions and dismiss
his appeal to the extent it challenges his sentence.
AFFIRMED IN PART, DISMISSED IN PART.