           Case: 18-12519   Date Filed: 03/04/2019   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12519
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:17-cr-00008-LSC-WC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

CEDRIC FOSTER,

                                                         Defendant-Appellant.

                      ________________________

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

                             (March 4, 2019)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 18-12519     Date Filed: 03/04/2019    Page: 2 of 3


      Cedric Foster pled guilty to one count of conspiracy to distribute and possess

with intent to distribute in excess of five hundred grams of cocaine hydrochloride,

in violation of 21 U.S.C. §§ 841(a)(1), 846. He was sentenced to 135 months’

imprisonment. On appeal, he argues that the district court erred by increasing his

offense level by eight levels under U.S.S.G. § 1B1.3(a)(2) and by two levels under

U.S.S.G. § 2D1.1(b)(15).

      In its brief to our Court, the government contends that Foster’s plea

agreement contains a valid and enforceable sentence appeal waiver and requests

that we dismiss Foster’s appeal on that basis.

      We review the validity of a sentence appeal waiver de novo. 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. United States v. Bushert,

997 F.2d 1343, 1351 (11th Cir. 1993). 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 makes clear that the defendant otherwise understood the

full significance of the waiver. Id.

      Nothing forbids the government from raising the sentence appeal waiver for

the first time in its appellate brief, rather than by motion in advance of its brief. Cf.

United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009) (holding that we will


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not enforce sua sponte the time requirements of Fed. R. App. P. 4(b) for filing a

notice of appeal in criminal case, but the issue may be raised for the first time in

the government’s brief on appeal if not raised on motion). “An appeal waiver

includes the waiver of the right to appeal difficult or debatable legal issues or even

blatant error.” United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.

2005). Further, even “[a] vigorous dispute about an issue during the sentencing

proceedings does not preserve that issue for appeal when the terms of the appeal

waiver do not except it from the waiver.” United States v. Bascomb, 451 F.3d

1292, 1296 (11th Cir. 2006).

      We do not address Foster’s arguments on the merits because his plea

agreement contained a valid sentence appeal waiver which he knowingly and

voluntarily entered into, and his plea colloquy establishes that he understood the

nature and extent of the appeal waiver and agreed to it. See Bushert, 997 F.2d at

1351. Because none of the appeal waiver’s exceptions apply, we grant the

government’s request to dismiss Foster’s appeal.

      APPEAL DISMISSED.




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