               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0148n.06

                                         No. 14-5003                                 FILED
                                                                               Feb 25, 2015
                         UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
        Plaintiff-Appellee,                     )         ON APPEAL FROM THE
                                                )         UNITED STATES DISTRICT
v.                                              )         COURT FOR THE WESTERN
                                                )         DISTRICT OF KENTUCKY
KELVIN WATKINS,                                 )
                                                )
                                                                  OPINION
        Defendant-Appellant.                    )
                                                )


Before: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Kelvin Watkins pleaded guilty to one

count of being a felon in possession of a firearm, one count of knowingly and intentionally

possessing with intent to distribute a mixture and substance containing a detectable amount of

cocaine base, and one count of knowingly possessing a firearm in furtherance of a drug

trafficking crime. Pursuant to his plea agreement, Watkins received a below-Guidelines sentence

of 100 months of imprisonment, which the district court determined would be served

consecutively to two five-year sentences for two unrelated state-court convictions. On appeal,

Watkins contends that the district court abused its discretion in deciding to impose his federal

sentence consecutive to his state sentences. The government has moved to dismiss Watkins’s

appeal, arguing that it is barred by an appeal-waiver provision in Watkins’s plea agreement. For

the reasons stated below, we GRANT the government’s motion to dismiss the appeal.
No. 14-5003
United States v. Watkins


                                       I. BACKGROUND

       This case implicates three separate incidents of criminal conduct. In 2008, Watkins

pleaded guilty in state court to wanton endangerment in the first degree, in violation of Kentucky

law. R. 37 (PSR at ¶ 36) (Page ID #168).1 He received a five-year prison sentence, but was

granted shock probation in 2009. Id. The state, however, revoked Watkins’s probation in 2011,

when Watkins was arrested for and later pleaded guilty to trafficking a controlled substance,

again in violation of Kentucky law. Id. at ¶ 39 (Page ID #169). Watkins received a second five-

year state prison sentence for this trafficking conviction. Id.

       On August 22, 2012, a federal grand jury returned a three-count superseding indictment

against Watkins, charging him with being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), with knowingly and intentionally possessing with

intent to distribute a mixture and substance containing a detectable amount of cocaine base in

violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C), and with knowingly possessing

a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). R.

8 (Superseding Indictment at 1–2) (Page ID #21–22). Watkins agreed to plead guilty to all

counts in exchange for the government agreeing to recommend a sentence of 100 months of

imprisonment.     Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), “such a




       1
         Watkins did not object to the facts in his Presentence Report (“PSR”). See R. 49
(Sentencing Hr’g Tr. at 2) (Page ID #217); see also United States v. Adkins, 429 F.3d 631, 632–
33 (6th Cir. 2005) (concluding that specifically declining to object to one’s presentence report
constitutes acceptance of the factual allegations contained within the report).

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No. 14-5003
United States v. Watkins


recommendation or request binds the court once the court accepts the plea agreement.”

Watkins’s plea agreement also included an appeal-waiver provision, which stated that:

       Defendant is aware of his right to appeal his conviction and that 18 U.S.C. § 3742
       affords a defendant the right to appeal the sentence imposed. The Defendant
       knowingly and voluntarily waives the right (a) to directly appeal his conviction
       and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18 U.S.C. § 3742,
       and (b) unless based on claims of ineffective assistance of counsel or
       prosecutorial misconduct, to contest or collaterally attack his conviction and the
       resulting sentence under 28 U.S.C. § 2255 or otherwise.

R. 31 (Plea Agreement at ¶ 11) (Page ID #134–35). The district court accepted Watkins’s guilty

plea at a hearing held on June 18, 2013. R. 47 (Plea Hr’g Tr. at 13–14) (Page ID #210–11).

       At sentencing, Watkins’s counsel requested that the district court exercise its discretion

under United States Sentencing Guidelines (“U.S.S.G.”) § 5G1.3 and run Watkins’s federal

sentence concurrent with his two state sentences. See R. 49 (Sentencing Hr’g Tr. at 7) (Page ID

#222). The district court denied this request, noting that “the state charge ha[d] nothing to do

with what [Watkins is] charged with here” and that Watkins “ha[d] a criminal history category of

VI.” Id. at 6 (Page ID #221).      In deciding to run Watkins’s 100-month federal sentence

consecutive to his state sentences, the district court explained that, although it understood

Watkins’s argument, it did not find the argument “appropriate in this case” because the

convictions were “for different conduct.”    Id. at 10 (Page ID #225).      Watkins has timely

appealed.




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No. 14-5003
United States v. Watkins


                                          II. DISCUSSION

          Our analysis proceeds in two parts. First, we must determine whether Watkins is barred

from raising his claim because of the appeal-waiver provision in his plea agreement. If that

provision does not apply, we must then consider whether Watkins’s claim succeeds on the

merits.

A. Appeal Waiver

          Watkins contends that his appeal waiver is inapplicable because the district court failed to

follow Federal Rule of Criminal Procedure 11(b)(1)(N), which requires the court to “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.” Watkins argues that

the district court never explicitly referred to the appeal-waiver provision during his plea hearing.

          A plea agreement is valid and enforceable only if the defendant entered into it knowingly

and voluntarily. United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003). “It is well settled that

a defendant in a criminal case may waive his right to appeal his sentence in a valid plea

agreement.” Id. We “review[] the question of whether a defendant waived his right to appeal his

sentence in a valid plea agreement de novo.” Id. Because, however, Watkins did not raise a

Rule 11 objection before the district court, we review his claim here for plain error. United

States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005). Under this standard, Watkins “must show

that there [was] 1) error, 2) that [was] plain, and 3) that affect[ed] [his] substantial rights.” Id. If

these three conditions are satisfied, we “may exercise [our] discretion to notice a forfeited error,



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No. 14-5003
United States v. Watkins


but only if 4) the error seriously affects the fairness, integrity, or public reputation of the judicial

proceedings.” Id.

        As Watkins points out, the district court in this case failed to comply literally with Rule

11(b)(1)(N) because it did not directly address the appeal-waiver provision during Watkins’s

plea hearing. “Rule 11(b)(1)(N) require[s] the district court to inform [Watkins] of the appellate

waiver provision and to insure that he understood it. Failure to do so constitute[s] error that [is]

plain.” Id. at 497. “Nonetheless, this kind of plain error does not always warrant reversal,

because the failure of a district court to abide by Rule 11’s requirements does not necessarily

affect the defendant’s substantial rights.” United States v. Cohen, 515 F. App’x 405, 409 (6th

Cir. 2013). In order to prevail on his claim, Watkins must also show the lack of “a ‘functional

substitute’ for the ‘key safeguard’ in Rule 11(b)(1)(N).” Id. “Functional substitutes have been

found when, for example, the prosecutor adequately explains the waiver provision, or when the

defendant states that he read and understood the terms of the plea agreement and discussed it

with his attorney.” Id. (citing cases).

        In United States v. Wilson, 438 F.3d 672 (6th Cir. 2006), the district court did not read

and explain the terms of Wilson’s appeal-waiver provision when it accepted his plea agreement.

However, during Wilson’s rearraignment proceeding, “the district court reviewed the charges

against defendant, established defendant’s competency, and inquired about defendant’s

satisfaction with his attorney. The district court also verified defendant’s understanding of the

terms of the plea agreement and the voluntariness of defendant’s plea.” Id. at 673. Finally, the



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No. 14-5003
United States v. Watkins


district court “asked the prosecutor to explain the essential terms of the plea agreement. The

prosecutor consequently explained, among other things, that defendant was waiving the right to

appeal the guilty plea, conviction, and sentence.” Id. The district court then proceeded to accept

Wilson’s plea agreement, and sentenced Wilson pursuant to the findings in his presentence

report. Wilson appealed his sentence, challenging its validity under Blakely v. Washington, 542

U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). We dismissed his appeal,

finding it barred by his plea agreement’s appeal-waiver provision. Wilson, 438 F.3d at 674. We

determined, in essence, that the district court’s actions, along with those of the prosecutor at

Wilson’s rearraignment hearing, were sufficient to constitute a functional substitute for Rule

11(b)(1)(N). Id.

       This case is on all fours with Wilson. As in Wilson, the district court here reviewed the

charges against Watkins, R. 47 (Plea Hr’g Tr. at 7–9) (Page ID #204–06), inquired into

Watkins’s competency, id. at 3–5 (Page ID #200–02), and asked Watkins whether he was

satisfied with his attorney, id. at 5 (Page ID #202). The district court also verified that Watkins

had read his plea agreement, had understood the terms of this agreement, and had discussed these

terms with his attorney, all before voluntarily entering into the agreement. Id. at 9–10 (Page ID

#206–07). Finally, the district court asked the prosecutor to “outline the substance of the plea

agreement[].” Id. at 10 (Page ID #207). During this discussion, the prosecutor noted that, “as

part of this plea agreement, the defendant is waiving his right to appeal with the exception of

appeals for prosecutorial misconduct or ineffective assistance of counsel.” Id. at 10–11 (Page ID



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No. 14-5003
United States v. Watkins


#207–08). When asked whether the “United States [had] accurately set forth the substance of the

plea agreement[] in this matter,” counsel for Watkins answered in the affirmative. Id. at 11

(Page ID #208). As in Wilson, Watkins cannot prevail under plain-error review, because there

was a “functional substitute” here for Rule 11(b)(1)(N). See also United States v. Robinson, 455

F.3d 602, 610 (6th Cir. 2006) (upholding appeal waiver where prosecutor summarized provision

at defendant’s plea hearing and defendant stated that he understood provision); United States v.

Sharp, 442 F.3d 946, 952 (6th Cir. 2006) (enforcing appeal waiver where defendant “read the

plea agreement, discussed it with his attorney, and [did] not claim that his attorney’s explanation

of the appellate-waiver provision was inadequate.”).

       In reaching our decision, we recognize that, in United States v. Bowman, 634 F.3d 357

(6th Cir. 2011), we declined to apply an appeal waiver to Bowman’s U.S.S.G. § 5G1.3(c)

challenge. In that case, we reviewed the language of Bowman’s appeal waiver, and noted that

“[n]o reference [was] made to either the state sentence or to U.S.S.G. § 5G1.3(c) in the plea

agreement.”    Id. at 361.    We reasoned that “[t]he government could have avoided any

imprecision on this issue by including language that would have precluded Bowman from

challenging the district court’s application of U.S.S.G. § 5G1.3, but it did not do so.” Id.

       The appeal waiver at issue in this case, however, is different from the appeal waiver in

Bowman. Bowman’s plea agreement included a limited appeal waiver, precluding him from

appealing “any sentence which [was] at or below the maximum of the guideline range as

determined by the court.” Id. at 360. Here, however, the appeal waiver is more comprehensive,



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No. 14-5003
United States v. Watkins


making clear that Watkins was, by signing the plea agreement, “knowingly and voluntarily

waiv[ing] the right (a) to directly appeal his conviction and the resulting sentence pursuant to

Fed. R. App. P. 4(b) and 18 U.S.C. § 3742, and (b) unless based on claims of ineffective

assistance of counsel or prosecutorial misconduct, to contest or collaterally attack his conviction

and the resulting sentence.” R. 31 (Plea Agreement at ¶ 11) (Page ID #134–35) (emphasis

added). In several unpublished opinions after Bowman, we have declined to extend Bowman

where, as here, the appeal waiver is more far-reaching. See, e.g., United States v. Callier, 565 F.

App’x 423, 425–26 (6th Cir. 2014) (“But the language of Defendant’s plea agreement is

different. Here, the plea agreement expressly provides that Defendant was apprised of his rights

to appeal the conviction or sentence in this case, including the appeal right conferred by 18

U.S.C. § 3742, and that he expressly and voluntarily waives those rights, with two enumerated

exceptions.”) (internal quotation marks and footnote omitted); United States v. Darby, 549 F.

App’x 499, 501 (6th Cir. 2014) (“But the plea agreement here is not the carbon image of the one

in Bowman. There, the defendant waived only his right to appeal a within or below-Guidelines

sentence, and nothing else. Here, Darby waived all of his appellate rights, with two exceptions.

And neither of those exceptions covers Darby’s argument.”); United States v. Ellis, 500 F. App’x

482, 484 (6th Cir. 2012) (finding no ambiguity in appeal waiver). To be sure, we have applied

Bowman in cases where the appeal waiver’s language is identical or nearly identical to the

waiver in Bowman. See, e.g., United States v. Kelley, 585 F. App’x 310, 313–14 (6th Cir. 2014);

United States v. Denton, 557 F. App’x 506, 506 (6th Cir. 2014). But that is not the case here.



                                                8
No. 14-5003
United States v. Watkins


Here, the appeal waiver was more comprehensive, containing only two enumerated exceptions,

which are not even remotely at issue. Accordingly, we conclude that Bowman does not apply,

and that Watkins’s appeal waiver bars our review.

B. Consecutive Sentencing Claim

       We note in passing that, even if we were to consider Watkins’s claim on the merits, we

would determine it to be without merit. We review the district court’s decision to impose a

concurrent or consecutive sentence under an abuse-of-discretion standard. United States v.

Berry, 565 F.3d 332, 342 (6th Cir. 2009). Section 5G1.3(c) from the 2013 edition of the

Sentencing Guidelines2 provides that, in cases such as these, “the sentence for the instant offense

may be imposed to run concurrently, partially concurrently, or consecutively to the prior

undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.”

The Commentary to this subsection notes that, “in cases in which the defendant was on federal or

state probation, parole, or supervised release at the time of the instant offense and has had such

probation, parole, or supervised release revoked,” “the Commission recommends that the

sentence for the instant offense be imposed consecutively to the sentence imposed for the

revocation.” U.S.S.G. § 5G1.3(c) cmt. n.3(C) (2013). Nonetheless, the district court should also

consider a number of other factors before deciding upon a sentence, including “the factors set

forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)).” Id. at cmt. n.3(A)(i); see also id. at

cmt. n.3(A) (discussing other factors). The district court considered those factors here. It



       2
           Watkins was sentenced on December 12, 2013.

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No. 14-5003
United States v. Watkins


referred to Watkins’s lengthy criminal history and the fact that Watkins’s state sentences were

for conduct unrelated to his federal sentence, thereby making it “generally clear the rationale

under which it ha[d] imposed the consecutive sentence.” United States v. Johnson, 553 F.3d

990, 998 (6th Cir. 2009). While the district court took note of Watkins’s contrition, it ultimately

decided, having considered the factors under 18 U.S.C. 3553(a), to run Watkins’s instant

sentence consecutively to his two state sentences. The district did not abuse its discretion in

reaching this conclusion.

                                      III. CONCLUSION

          For the foregoing reasons, we GRANT the government’s motion to dismiss Watkins’s

appeal.




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