Case: 12-11147          Date Filed: 02/07/2013   Page: 1 of 9

                                                                         [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11147
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 6:10-cr-00191-MSS-GJK-4



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll&                                   Plaintiff-Appellee,

                                                  versus

NATACHA JIHAD PIZARRO-CAMPOS,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                            (February 7, 2013)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Natacha Pizarro-Campos appeals her 120-month sentence, the statutory

minimum for her offense, after pleading guilty to 1 count of conspiracy to possess,

with the intent to distribute, 500 grams or more of methamphetamine, in violation

of 21 U.S.C. §§ 846 and 841(a)(1). Pizarro-Campos raises several issues on

appeal.

      First, she argues that the district court erred by denying her motion to strike

the appeal waiver from her plea agreement. Second, she argues that the court

violated her due process rights at sentencing by failing to require the government

to produce transcripts of grand jury proceedings where she testified. Third, she

argues that the court erred by determining that she was ineligible for relief from

the mandatory minimum sentence under 18 U.S.C. § 3553(f). Fourth, she argues

that the court erred by imposing the statutory minimum sentence because

mandatory minimums violate separation of powers, due process, and the

parsimony clause of 18 U.S.C. § 3553(a). Finally, she argues that her sentence

violates her Eighth Amendment rights.

                                          I.

      Pizarro-Campos argues that the court erred by denying her motion to strike

the appeal waiver from her plea agreement, because the waiver contravenes

Florida’s public policy and protects government interests over those of the

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defendant. The Florida Bar Ethics Committee (“FBEC”) drafted a proposed

advisory opinion stating that prosecutors may not make plea offers that require

defendants to waive their rights to ineffective assistance of counsel claims,

because it creates conflicts of interest for criminal defense attorneys. The Board

of Governors of the Florida Bar approved this opinion on December 7, 2012. See

Professional Ethics of the Florida Bar, Opinion 12-1 (June 12, 2012) [approved

December 7, 2012].

      She also argues that the appeal waiver is unenforceable because she agreed

to it under duress. She asserts that the government’s policy of requiring

defendants to sign an appeal waiver in order to be eligible for a downward

departure under U.S.S.G. § 5K1.1, for substantial assistance to the government, is

unduly coercive. Therefore, she was forced to give up her appellate rights in order

to potentially avoid a mandatory minimum sentence.

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

v. Johnson, 

, 1066 (11th Cir. 2008). Sentence appeal waivers are

enforceable when made knowingly and voluntarily. United States v. Bushert, 

, 1350-51 (11th Cir. 1993). To establish that the waiver was made

knowingly and voluntarily, the government must show that either (1) the court

specifically questioned the defendant about the waiver during the plea colloquy, or

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(2) the record makes clear that the defendant otherwise understood the full

significance of the waiver. 

cannot disregard prior binding

precedents–even for policy reasons–until those cases are abrogated by the

Supreme Court, or overruled by this Court sitting en banc, which has not occurred

with respect to Bushert. United States v. Ghertler, 

, 1269 (11th Cir.

2010).

      First, the court did not err in ruling that Pizarro-Campos’s appeal waiver

was valid despite the FBEC’s advisory ethics opinion. We have acknowledged the

public benefit of plea bargains in criminal cases, 

, and

the FBEC’s opinion only addresses the waiver of ineffective assistance and

prosecutorial misconduct claims. Notably, Pizarro-Campos argues that appeal

waivers are invalid because they require defendants to waive ineffective assistance

of counsel claims, a claim that she has not made. Further, her additional argument

that public policy considerations support holding that appeal waivers are

unenforceable is undermined by Bushert.

      Second, the court did not err in determining that Pizarro-Campos entered

into her plea agreement knowingly and voluntarily. At the plea hearing, the court

specifically and adequately addressed the sentencing appeal waiver, explaining

each challenge that Pizarro-Campos had not waived. Pizarro-Campos stated that

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she understood she was waiving her right to appeal, and that she was “freely and

voluntarily” entering her plea.

      Because there is no indication that Pizarro-Campos did not knowingly and

voluntarily enter the agreement, she has not overcome the strong presumption that

the statements she made at the plea hearing were true. See United States v.

Medlock, 

, 187 (11th Cir. 1994) (ruling that there is a strong

presumption that statements made under oath by a defendant during the plea

colloquy are true). Therefore, the appeal waiver provision is valid, and the district

court’s denial of Pizarro-Campos’s motion to strike is affirmed.

                                          II.

      Most of the issues raised by Pizarro-Campos on appeal were waived in her

plea agreement. Pizarro-Campos argues that the court violated her due process

rights at sentencing by ruling that the government’s failure to produce transcripts

of grand jury proceedings was not a Brady1 violation. She argues that the court

erred by ruling that she was ineligible for “safety valve” relief from the mandatory

minimum sentence under 18 U.S.C. § 3553(f). She also argues that the court erred

by imposing the statutory minimum sentence because mandatory minimums

violate separation of powers, due process, and the parsimony clause of 18 U.S.C.

      1
          Brady v. Maryland, 

, 

, 

(1963).
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§ 3553(a).

      Pizarro-Campos knowingly and voluntarily waived her right to initiate an

appeal of her sentence, except to challenge a sentence imposed above the

guideline range as determined by the court, a sentence imposed above the statutory

maximum of life, or a sentence in violation of the Eighth Amendment. We

enforce a sentence appeal waiver if it was made knowingly and voluntarily.

Bushert, 

. Because she waived her right to appeal based on the

court’s denial of her request for grand jury transcripts, the court’s denial of “safety

valve” relief, and the legality and constitutionality of the mandatory minimum, we

dismiss these claims.

                                          III.

      Pizarro-Campos argues that her sentence violates her Eighth Amendment

rights, because it is grossly disproportionate to her crime, and because the

application of mandatory minimums constitutes cruel and unusual punishment.

      We review the legality of a sentence under the Eighth Amendment de novo.

United States v. Johnson, 

, 1242 (11th Cir. 2006). The Eighth

Amendment prohibits the infliction of cruel and unusual punishments. U.S.

CONST. amend. VIII. In non-capital cases, the defendant must first show that the

sentence is grossly disproportionate to the offense. 

. In

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general, a sentence within the statutory limits for an offense is not grossly

disproportionate. 

limits for Pizarro-Campos’s offense,

conspiracy to possess, with the intent to distribute, 50 grams or more of

methamphetamine, is 10 years to life. 21 U.S.C. § 841(b)(1)(A)(viii).

      Because there are no objective standards for analyzing the difference

between sentences of imprisonment for different terms of years, successful

challenges to the length of sentences are “exceedingly rare.” Harmelin v.

Michigan, 

, 1001,111 S.Ct. 2680, 2705, 

(1991). We

have never ruled that a sentence of imprisonment was grossly disproportionate.

United States v. Farley, 

, 1343 (11th Cir. 2010). Moreover, the

mandatory nature of a sentence in a non-capital case does not affect

proportionality. 

has held that one sentence, outside of juvenile cases,

violated the Eighth Amendment, where a life sentence without parole was imposed

on a defendant who committed a string of relatively minor, non-violent offenses.

Solem v. Helm, 

, 280-81, 

, 3005, 

(1983). The Supreme Court noted that the offense in Solem, uttering a “no

account” check, was “one of the most passive felonies a person could commit,”

and was “viewed by society as among the less serious offenses.” 

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(quotation omitted).

      In Harmelin, the Supreme Court ruled that a life sentence without parole

was not grossly disproportionate for a defendant convicted of possessing 672

grams of cocaine. 

, 

,

2705-06. The Court explained that, unlike the offense in Solem, the possession,

use, and distribution of illegal drugs threatened grave harm to society. 

111 S.Ct. at 2705-06.

      Based on the Supreme Court’s ruling in Harmelin, and the precedent of this

Court, Pizarro-Campos has not shown that her 10-year sentence is grossly

disproportionate to her offense. Unlike the offense in Solem, conspiracy to

possess with the intent to distribute methamphetamine is not a passive felony that

is considered less serious by society. Pizarro-Campos’s offense threatened grave

harm to society, because of the detrimental effect that methamphetamine has on

users, and because of the crimes of violence associated with its distribution and

sale. Where the defendant in Harmelin, whose sentence of life without parole was

upheld, was responsible for the distribution of 672 grams of cocaine,

Pizarro-Campos was responsible for a much larger amount, 1,639.9 grams, of

methamphetamine. Therefore, Pizarro-Campos’s sentence is not grossly

disproportionate to her offense, and does not violate the Eighth Amendment.

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      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.




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