                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 16a0329n.06

                                                 No. 15-3331

                              UNITED STATES COURT OF APPEALS                                         FILED
                                   FOR THE SIXTH CIRCUIT                                     Jun 16, 2016
                                                                                         DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                )
                                                         )
            Plaintiff-Appellee,                          )           ON APPEAL FROM THE
                                                         )           UNITED STATES DISTRICT
v.                                                       )           COURT FOR THE NORTHERN
                                                         )           DISTRICT OF OHIO
JOHN BLACK,                                              )
                                                         )
                                                                              OPINION
            Defendant-Appellant.                         )
                                                         )


Before: MOORE, SUTTON, and DONALD, Circuit Judges.

        KAREN NELSON MOORE, Circuit Judge. John Black pleaded guilty to a one-count

information charging him with wire fraud in violation of 18 U.S.C. § 1343. In Black’s plea

agreement, Black and the government stipulated that (1) pursuant to U.S.S.G. §§ 2B1.1 and

3B1.3, Black’s Adjusted Offense Level was twenty-five; (2) the government would move for a

three-level reduction under U.S.S.G. § 3E1.1 because Black accepted responsibility for his

offense; and (3) Black would pay restitution in the amount of $1,217,260. 1 The plea agreement

also contained an appeal waiver; however, as relevant here, Black retained the right to appeal his

sentence if it exceeded the parties’ “agreed upon sentence.” The district court adopted the

parties’ sentencing recommendations, imposed a within-guidelines sentence of forty-six months’

imprisonment followed by three years’ supervised release, and ordered Black to pay $1,217,260

in restitution.

        1
           Throughout this opinion, we refer to the 2014 edition of the Sentencing Guidelines Manual, which was in
effect at Black’s sentencing.
No. 15-3331
United States v. John Black


       Black appeals, arguing that the district court miscalculated the loss amount attributable to

his fraud. The government counters that the appeal waiver in Black’s plea agreement bars his

appeal. For the reasons set forth below, we DISMISS Black’s appeal.

                                I. FACTS AND PROCEDURE

A. Black embezzles money from his employer and pleads guilty to one count of
   wire fraud.
       Between 2011 and 2012, Black embezzled money from Alotech Ltd., Black’s employer

in Brooklyn, Ohio. R. 7 (Plea Agreement, Attachment A, ¶¶ A, H) (Page ID #30–31). Black’s

scheme was not complicated. Black was Alotech’s CFO. Id. ¶ A (Page ID #30). He took

money from Alotech’s business-checking and retirement accounts and used it to pay personal

expenses. Id. ¶ H (Page ID #30–31). Black gave much of the money he embezzled to women he

met over the internet, in the form of lavish gifts and cash. Id. ¶¶ M–V (Page ID #32–33). All

told, Black embezzled over $1,217,260 from Alotech. Id. ¶ Y (Page ID #33).

       On November 17, 2014, the government filed an information charging Black with one

count of wire fraud. R. 1 (Information at 5–6) (Page ID #5–6). Black pleaded guilty to that

information pursuant to a written plea agreement. R. 7 (Plea Agreement) (Page ID #20). Black

and the government “agree[d] to recommend that the [district court] impose a sentence within the

range and of the kind specified pursuant to the advisory Sentencing Guidelines in accordance

with the computations and stipulations set forth” in the plea agreement. Id. ¶ 13 (Page ID #23).

Four of those computations and stipulations bear mention here:




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United States v. John Black


        1. Black and the government agreed that Black’s Adjusted Offense Level was twenty-

five.   Id. ¶ 15 (Page ID #24).      Black’s Base Offense Level was seven (under U.S.S.G.

§ 2B1.1(a)(1)), Black received a sixteen-level enhancement because he embezzled over

$1,000,000 (§ 2B1.1(b)(1)(I)), and he received a two-level enhancement because he abused a

position of trust (§ 3B1.3). Id.

        2.   The government agreed to recommend a three-level sentence reduction under

U.S.S.G. § 3E1.1(a) and (b) because Black accepted responsibility for his offense. Id. ¶ 16 (Page

ID #24).

        3. The plea agreement expressly provided that “[t]he parties have no agreement about the

Criminal History Category applicable in this case.” Id. ¶ 17 (Page ID #24).

        4. Black agreed to pay Alotech $1,217,260 in restitution, “on such terms and conditions

as the [district court] may impose.” Id. ¶ 22 (Page ID #26).

        The plea agreement also contained an appeal waiver. Id. ¶ 18 (Page ID #24–25). Black

waived his right to appeal or collaterally attack his sentence, save for a few limited scenarios. Id.

As relevant here, the appeal waiver allowed Black to retain his right to appeal “any sentence to

the extent it exceeds [the] agreed upon sentence.” Id. (Page ID #25).

B. The district court imposes a within-guidelines sentence and orders Black to pay
   $1,217,260 in restitution.
        At Black’s plea hearing on December 19, 2014, the district court confirmed that Black

understood the consequences of the sentencing recommendations and appeal waiver in his plea

agreement. R. 30 (Plea Hr’g Tr. at 7–10) (Page ID #263–66). The district court explained that


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Black’s Total Offense Level (after the acceptance-of-responsibility adjustment) would be

twenty-two; with a Criminal History Category of I, Black faced a guidelines range of forty-one

to fifty-one months’ imprisonment. Id. at 8–9 (Page ID #264–65). The court noted during the

hearing: “[W]hen I have a [joint sentencing recommendation] in a plea agreement, I almost

always follow it, so there is a very high likelihood that you will in fact get a sentence within the

advisory range.” Id. at 8 (Page ID #264). With regard to restitution, the district court informed

Black that it would “order [him] to make full restitution in the amount of $1,217,260 to

Alotech.” Id. at 10 (Page ID #266). As for whether Black could appeal the district court’s

sentence, the district court stated: “[I]f I do follow both parties’ recommendation and sentence

you within the advisory range, you cannot appeal your conviction and/or your sentence. Do you

understand that?” Id. Black responded: “Yes, Your Honor.” Id.

       The district court sentenced Black on March 13, 2015. R. 31 (Sentencing Hr’g Tr.) (Page

ID #272). Consistent with Black’s plea agreement, the district court assigned Black a Total

Offense Level of twenty-two, which—in light of Black’s Criminal History Category of I—

resulted in a forty-one-to-fifty-one-month advisory guidelines range. Id. at 3–4 (Page ID #274–

75). The district court sentenced Black squarely in the middle of that range: forty-six months in

prison and three years of supervised release. Id. at 56 (Page ID #327). The district court also

ordered Black to pay Alotech $1,217,260 in restitution. Id.




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C. Black appeals his sentence, and a motions panel of this court defers
   consideration of the government’s motion to dismiss.
       Black appealed on March 27, 2015. R. 23 (Notice of Appeal) (Page ID #247). Black

argued, first, that the appeal waiver in his plea agreement did not bar him from appealing his

sentence. Appellant Br. at 11–15. On the merits, Black argued that the district court erroneously

attributed $1,217,260 (and not a lesser amount) to Black’s fraud. Id. at 15–23. Black claimed

that that error rendered his sentence procedurally unreasonable. Id. The government moved to

dismiss, arguing that Black’s appeal waiver barred his appeal. Mot. to Dismiss Appeal at 1–2.

       A motions panel of this court deferred consideration of the government’s motion to

dismiss, reasoning that “[t]he validity of the appeal waiver in this case should be determined in

conjunction with the merits of the appeal.” 1/28/16 6th Cir. Order at 2. The panel noted that,

although Black and the government had stipulated to an “advisory offense level,” the plea

agreement was silent as to Black’s Criminal History Category. Id. Thus, the panel reasoned, the

appeal waiver was arguably ambiguous. Id.

                                        II. ANALYSIS

       We review de novo “whether a defendant waived his right to appeal his sentence in a

valid plea agreement.” United States v. Swanberg, 370 F.3d 622, 626 (6th Cir. 2004) (quoting

United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003)). “Because ‘[r]estitution is a part of

one’s sentence under the statutory scheme,’” a defendant who waives his right to appeal his

criminal sentence cannot challenge either the period of incarceration or the amount of restitution




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United States v. John Black


that his sentence imposes. United States v. Gibney, 519 F.3d 301, 306 (6th Cir. 2008) (quoting

United States v. Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000)).

        We conclude that Black waived his right to bring this appeal. Moreover, because Black

waived his right to appeal his sentence, he cannot challenge either his prison term or the

restitution order.

        We reach this conclusion in two steps. First, looking to the language of Black’s plea

agreement, we conclude that the appeal waiver unambiguously prohibits Black from appealing

his within-guidelines sentence. Second, we conclude that Black knowingly and voluntarily

waived his right to appeal. The appeal waiver thus bars Black from appealing his sentence.

A. The appeal waiver unambiguously bars Black from appealing his within-
   guidelines sentence.
        The appeal waiver in Black’s plea agreement is clear. Black waived his right to appeal

unless his sentence exceeded (a) 18 U.S.C. § 1343’s statutory maximum (twenty years’

imprisonment) or (b) the parties’ “agreed upon sentence.” Black’s forty-six-month sentence is

far below 18 U.S.C. § 1343’s statutory maximum. The district court arrived at that sentence after

adopting wholesale the parties’ sentencing recommendations—in other words, the district court

imposed the parties’ “agreed upon sentence.” Black thus cannot bring this appeal.

        “Plea agreements are contractual in nature, so we use traditional contract law principles

in interpreting and enforcing them.” United States v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011)

(quoting United States v. Harris, 473 F.3d 222, 225 (6th Cir. 2006)). Those principles require us

to take an objective approach in reading the terms of Black’s appeal waiver. See United States v.


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United States v. John Black


Moncivais, 492 F.3d 652, 663 (6th Cir. 2007). Thus, in order to determine whether the appeal

waiver in Black’s plea agreement bars this appeal, we do not look to “the parties’ actual

understanding of the terms of the agreement; instead, [the] agreement must be construed as a

reasonable person would interpret its words.” Id. (emphasis added).

       Plea agreements, however, differ from other contracts in one important respect:

“[B]ecause plea agreements’ constitutional and supervisory implications raise concerns over and

above those present in the traditional contract context, in interpreting such agreements we ‘hold

the government to a greater degree of responsibility than the defendant . . . for imprecisions or

ambiguities in . . . plea agreements.’” Bowman, 634 F.3d at 360 (quoting Harris, 473 F.3d at

225). Put simply: we interpret ambiguities in plea agreements against the government. United

States v. Freeman, 640 F.3d 180, 194 (6th Cir. 2011). “[A] plea agreement is ‘ambiguous if it is

capable of more than one reasonable interpretation.’” United States v. Debreczeny, 69 F. App’x

702, 706 (6th Cir. 2003) (quoting United States v. Gebbie, 294 F.3d 540, 551 (3d Cir. 2002)).

       The appeal waiver in Black’s plea agreement is not ambiguous: it is capable of one

reasonable interpretation. A reasonable person—reading the appeal waiver in the context of

Black’s plea agreement “as a whole,” United States v. Randolph, 230 F.3d 243, 249 (6th Cir.

2000)—would understand that it bars this appeal because the district court sentenced Black

pursuant to the parties’ sentencing recommendations.

       Black highlights what he considers to be a gap in his plea agreement, but his argument is

unavailing. The appeal waiver permits Black to appeal “any sentence to the extent it exceeds



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United States v. John Black


[the] agreed upon sentence”; however, Black argues that “the plea agreement contains no ‘agreed

upon sentence’” (i.e., a set number or range of months). Appellant Br. at 11–12. By Black’s

reading, the lack of a specific agreed-upon sentence in his plea agreement—beyond the offense-

level calculations and the restitution amount to which the parties stipulated—means that “the

plea agreement effectively contains a term that grants the right to appeal ‘any sentence.’” Id. at

12.

       Black’s reading of the appeal waiver fails because it is not reasonable. Black’s plea

agreement contains an “agreed upon sentence”:         Black and the government “agree[d] to

recommend that the [district court] impose a sentence within the range and of the kind specified

pursuant to the advisory Sentencing Guidelines in accordance with the computations and

stipulations set forth” in Black’s plea agreement. R. 7 (Plea Agreement ¶ 13) (Page ID #23). To

that end, Black and the government stipulated to Black’s Adjusted Offense Level (twenty-five),

Total Offense Level (twenty-two), and a restitution amount ($1,217,260). Id. ¶¶ 15–16, 22 (Page

ID #23–24, 26). “[T]he intent of the parties as expressed by the plain language in the plea

agreement,” United States v. Beals, 698 F.3d 248, 256 (6th Cir. 2012), is clear: Black and the

government agreed to recommend that the district court (1) calculate Black’s sentence based on a

Total Offense Level of twenty-two and (2) order Black to pay $1,217,260 in restitution.

       The district court did just that.         The court adopted the parties’ sentencing

recommendations,     calculated   Black’s   guidelines    range   in   accordance    with   those

recommendations, sentenced Black to a term of imprisonment in the middle of that range, and



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United States v. John Black


ordered Black to pay the agreed upon $1,217,260 in restitution. The district court gave Black

what he bargained for: the “agreed upon sentence” from Black’s plea agreement. Black cannot

appeal that sentence.

       There is one loose thread in Black’s plea agreement: the parties did not stipulate to

Black’s Criminal History Category. That, however, neither renders the term “agreed upon

sentence” ambiguous nor changes the appeal waiver’s plain meaning. See United States v.

Martinez, 430 F. App’x 406, 408–10 (6th Cir. 2011). Black and the government agreed to

recommend that the district court assign Black a Total Offense Level of twenty-two and order

Black to pay $1,217,260 in restitution. Black’s plea agreement added: “Defendant understands

that the Criminal History Category will be determined by the [district court] after the completion

of a Pre-Sentence Investigation by the U.S. Probation Office.” R. 7 (Plea Agreement ¶ 17) (Page

ID #24). A reasonable person would understand that the parties’ “agreed upon sentence” was a

sentence based on the plea agreement’s offense-level stipulations—with a Criminal History

Category to be decided by the district court—combined with an order to pay $1,217,260 in

restitution. Because Black ultimately received such a sentence, he cannot bring this appeal.

       In sum, Black’s sentence falls squarely within the appeal waiver in Black’s plea

agreement. Black thus waived his right to bring this appeal.

B. Black knowingly and voluntarily waived his right to appeal his sentence.

       Black also suggests that he may not have knowingly and voluntarily waived his right to

appeal because of the “confusion over the appellate waiver provision.” Appellant Br. at 13. This



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argument also fails: after reviewing the transcript of Black’s plea hearing, we are confident that

Black understood fully the effect and scope of his appeal waiver.

       Even when the terms of an appeal waiver are clear, “[s]uch waivers are not absolute . . .

as they must be made knowingly and voluntarily.” Gibney, 519 F.3d at 306. “A waiver is

neither informed nor voluntary when the defendant does not understand, or is not apprised of, the

operation of the waiver.” Id. To this end, Federal Rule of Criminal Procedure 11(b)(1)(N)

provides that before a district court accepts a defendant’s guilty plea, it “must inform the

defendant of, and determine that the defendant understands . . . the terms of any plea-agreement

provision waiving the right to appeal or to collaterally attack the sentence.” Fed. R. Crim. P.

11(b)(1)(N). Rule 11 thus serves two important purposes: it “insure[s] that first, a complete

record exists regarding any waiver provisions, and second, that the waiver was voluntarily and

knowingly made by the defendant.” United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005)

(quoting Fed. R. Crim. P. 11 advisory committee’s notes). Here, the district court complied with

Rule 11, and we conclude that Black understood the effect of the appeal waiver in his plea

agreement.

       Because Black did not raise this argument before the district court, we review for plain

error his claim that he did not understand the consequences of his appeal waiver. United States

v. Robinson, 455 F.3d 602, 610 (6th Cir. 2006). To prevail under this standard, Black must show

“1) error, 2) that is plain, and 3) that affects substantial rights. If all three conditions are met,

[we] may exercise [our] discretion to notice a forfeited error, but only if 4) the error seriously



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United States v. John Black


affects the fairness, integrity, or public reputation of the judicial proceedings.” Murdock, 398

F.3d at 496 (citing Johnson v. United States, 520 U.S. 461, 467 (1997)).

       Black’s argument fails from the start: there was no error here. At his plea hearing, Black

confirmed his understanding that he was waiving his right to appeal his sentence if the district

court sentenced him pursuant to the recommendations in Black’s plea agreement. The district

court told Black that, based on the stipulations in his plea agreement, Black’s Total Offense

Level was twenty-two. R. 30 (Plea Hr’g Tr. at 8) (Page ID #264). The court asked counsel for

Black and the government if they agreed that Black’s Criminal History Category was I; they did,

and the district court told Black that his advisory sentencing range would be forty-one to fifty-

one months in prison. Id. at 8–9 (Page ID #264–65). The court stated that “there [was] a very

high likelihood that [Black would] in fact get a sentence within the advisory range.” Id. at 8

(Page ID #264). Then the district court explained the effect of the appeal waiver as follows:

       What you are doing in Paragraph 18 is giving up your right to file an appeal
       unless I give you a sentence above the statutory maximum, which won’t happen,
       and if I give you a sentence above the Guideline range set out in your plea
       agreement. So put another way, if I do follow both parties’ recommendation and
       sentence you within the advisory range, you cannot appeal your conviction and/or
       your sentence.

Id. at 9–10 (Page ID #265–66). The district court asked Black if he understood the consequences

of the appeal waiver, and Black said that he did. Id. at 10 (Page ID #266).

       That colloquy convinces us that the district court explained fully “the operation of the

waiver,” and that Black understood the waiver’s effect. Gibney, 519 F.3d at 306. Finding no

Rule 11 violation, we must enforce the appeal waiver and dismiss Black’s appeal.


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                                   III. CONCLUSION

       For the reasons set forth above, we DISMISS Black’s appeal.




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