Case: 19-13813    Date Filed: 03/13/2020    Page: 1 of 4



                                                           [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-13813
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8:18-cr-00234-MSS-SPF-3

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

ALLAN BURT GUINTO,
a.k.a. Big Beefy,

                                                               Defendant-Appellant.
                           ________________________

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

                                  (March 13, 2020)

Before ED CARNES, Chief Judge, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

      Allan Guinto pleaded guilty to conspiracy to commit murder in aid of

racketeering activity, murder in aid of racketeering activity, and accessory after the

fact. As part of his plea agreement he waived the right to appeal in all but four
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circumstances: the sentence exceeded the defendant’s applicable guidelines range

as determined by the district court; the sentence exceeded the statutory maximum;

the sentence violated the Eighth Amendment; or the government first appealed. He

expressly waived his right to appeal on the ground that the district court “erred in

determining the applicable guidelines range.” Guinto initialed or signed every

page of his plea agreement, including the pages containing the appeal waiver

provision. He certified that he had either read the entire plea agreement or had it

read to him.

      During Guinto’s change of plea hearing, the magistrate judge placed him

under oath and questioned him to ensure that his plea was knowingly and

voluntarily given. Guinto testified to the following. He was twenty-seven years

old and was in college at the time. He was not under the influence of drugs,

alcohol, or medication. He had been diagnosed with post-traumatic stress disorder,

but he testified that it did not affect his ability to understand the agreement.

      The court discussed all of the rights that Guinto was giving up in the plea

agreement, as required under Federal Rule of Criminal Procedure 11. Guinto

paused the change of plea hearing so that he could discuss the appeal waiver with

his attorney. The court also explained the appeal waiver and the four

circumstances in which he could appeal.



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      At his sentence hearing, the district court adopted the facts in the

presentence report without objection. The PSR recommended a base offense level

of 40 and a criminal history of I. The court increased the base offense level to 42

because murder in aid of racketeering activity allows for the possibility of life in

prison and level 42 is the lowest offense level for defendants with a criminal

history level of I that allows for life in prison. After hearing the parties’ § 5K1.1

substantial assistance departure arguments, it sentenced Guinto to 144 months in

prison. Guinto now appeals, contending that the district court erred in its

guidelines calculation by increasing his base offense level to 42.

      We review de novo the validity of an appeal waiver. United States v.

Bushert, 

, 1352 (11th Cir. 1993). An appeal waiver is enforceable if

it is knowingly and voluntarily made by the defendant. The government can

establish that a waiver is knowingly and voluntarily made by showing that “the

district court specifically questioned the defendant about the provision during the

plea colloquy.” United States v. Weaver, 

, 1333 (11th Cir. 2001).

      Guinto’s appeal waiver was knowingly and voluntarily made. The court

specifically questioned him about the appeal waiver; he testified that he was

competent to make a plea and that he understood he was giving up his right to

appeal in all but the four listed exceptions. Guinto does not contend that any of

those four exceptions apply here.

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DISMISSED.




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