                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0403n.06

                                        Case No. 18-1889

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                   FILED
                                                                             Aug 02, 2019
UNITED STATES OF AMERICA,                            )
                                                                         DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE EASTERN DISTRICT OF
DIONDRE SMITH,                                       )      MICHIGAN
                                                     )
       Defendant-Appellant.                          )




       BEFORE: MOORE, COOK, and THAPAR, Circuit Judges.

       COOK, Circuit Judge. When Diondre Smith pleaded guilty to conspiring to distribute

cocaine, he agreed not to appeal his mandatory minimum 120-month sentence. Smith nevertheless

challenges his sentence, the plea agreement provision waiving his right to appeal, and the district

court’s decision to accept his plea. Because Smith knowingly entered the agreement with the

corollary appellate waiver, we enforce it by affirming the district court’s judgment and dismissing

Smith’s appeal.

                                                I.

       In 2017, Smith pleaded guilty to conspiracy to possess and distribute cocaine and, as part

of his plea bargain, “waive[d] any right he may have to appeal his sentence” unless it exceeded

“the maximum allowed by Part 3 of th[e] agreement.” Part 3 capped Smith’s sentence at “the top
Case No. 18-1889, United States v. Smith


of the sentencing guideline range as determined by Paragraph 2B,” and, important for that deal

(and this appeal), established a floor: “the [c]ourt must impose a sentence of at least 120-months.”

Paragraph 2B clarified that the mandatory minimum sentence exceeded, and therefore,

“superseded,” the parties’ 87-to-108-month guideline calculation. R. 46, PageID 94–95.

       At the hearing before the district court to accept his plea, Smith replied “yes” when asked

if he understood the possible penalties, including the 120-month statutory minimum. And after

the court explained that his guilty plea “waive[d] his right to appeal the conviction or sentence,”

save for an ineffective-assistance claim, Smith confirmed he understood the provision, having

reviewed the agreement with counsel in advance. Satisfied that Smith knowingly and voluntarily

entered the agreement, the court accepted his guilty plea and sentenced him to 120-months’

imprisonment. This appeal followed.

                                                 II.

       At the outset, we consider the plea agreement’s appellate waiver provision and review de

novo whether Smith waived his right to appeal in a valid plea agreement. United States v.

Murdock, 398 F.3d 491, 496 (6th Cir. 2005).

       Smith waived any right to appeal his sentence with one condition: at least 120-months’

imprisonment, not to exceed the top of the sentencing guideline range. R. 46, PageID 96, 98.

Smith first insists that he did not waive his right to appeal a sentence greater than the parties’ 87-

to-108-month recommendation. The agreement plainly forecloses that argument: application of

the 120-month mandatory minimum “superseded” the otherwise applicable guideline range. R.

46, PageID 94–95. The court explained, “[t]hat’s done under a statute, so whereas the guidelines

are advisory, the statute is in stone. I can’t go less than 120,” and Smith confirmed that he

understood. R. 67, PageID 195–96.


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Case No. 18-1889, United States v. Smith


       Smith also attacks the waiver provision as ambiguous, but our precedents foreclose that

argument too. See, e.g., United States v. Keller, 665 F.3d 711, 717–18 (6th Cir. 2011) (finding

identical appellate waiver provision unambiguous); United States v. Calderon, 388 F.3d 197, 199

(6th Cir. 2004) (same).

       Because the court sentenced Smith according to the agreement, the appellate waiver holds,

and Smith is bound by it—so long as he understood it. See United States v. Sharp, 442 F.3d 946,

949 (6th Cir. 2006) (“[A] waiver is effective only if understood by the defendant.”). Thus, we

entertain only Smith’s challenges to the waiver itself “on various—albeit narrow—grounds,

including that it was not knowing and voluntary [or] was not taken in compliance with” Rule 11.

Campbell v. United States, 686 F.3d 353, 358 (6th Cir. 2012) (internal quotation marks omitted).

Smith argues both to no avail.

       As the recitation of facts here makes plain, the district court more than satisfied Rule 11’s

mandate to inform Smith of, and determine that he understood the terms of, his waiver. See Fed.

R. Crim. P. 11(b)(1)(N). And when the court asked, Smith testified that he understood the waiver’s

terms. What’s more, Rule 11 does not require “ask[ing] a particular question about the appellate-

waiver provision,” Sharp, 442 F.3d at 951, but the district judge did so anyway, explaining the

waiver’s ineffective-assistance-claim exception until Smith confirmed his understanding. Given

Smith’s testimony in open court and the court’s specific inquiry about the appellate waiver, we

conclude that Smith was informed of and understood the provision.

       But Smith rightly faults the district court for failing to address possible departures under

the sentencing guidelines and the 18 U.S.C. § 3553(a) sentencing factors. See Fed. R. Crim. P.

11(b)(1)(M). The judge mentioned neither before accepting Smith’s plea, but that amounts to, at

most, a minor departure from Rule 11’s requirements. See United States v. Banks, 467 F. App’x


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468, 473 (6th Cir. 2012) (“[T]he district court’s minor departure from Rule 11(b)(1)(M) does not

warrant reversal by this court.”). And, this being the first time he lodges a Rule 11 complaint,

Smith must show that, but for the court’s error, “he would not have entered [his] plea.” United

States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). He cannot. When Smith entered his plea,

he understood that the court lacked authority to impose a sentence below the 120-month mandatory

minimum he ultimately received. Though the district court did not say precisely that it was

required to consider possible departures and other sentencing factors, Smith fails to show how this

omission affected his substantial rights.

                                             III.

       The district court complied with Rule 11 when it accepted Smith’s plea and we AFFIRM

its judgment. We DISMISS Smith’s appeal, finding that he entered his plea agreement—and

accepted the appellate waiver provision—knowingly and voluntarily.




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Case No. 18-1889, United States v. Smith


       KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree with

the majority’s conclusion today that, because Smith’s appellate waiver is valid, we must dismiss

his appeal. I write separately to note my concern with some of the circumstances surrounding

Smith’s sentence and plea agreement. Specifically, at Smith’s plea hearing, the government

explained that it had “made it clear that Mr. Smith [wa]s safety-valve eligible” under 18 U.S.C.

§ 3553(f) and that Smith “had the option of a 15-to-21-months result as opposed to a 121-month

[sic] mandatory minimum.” R. 67 (Plea Hr’g Tr. at 9) (Page ID #192). At Smith’s sentencing

hearing, however, Smith’s counsel confirmed that Smith had two criminal history points based

upon two qualifying state convictions, thereby making him ineligible for a reduced sentence under

the safety-valve provision of § 3553(f). R. 68 (Sent’g Hr’g Tr. at 5–6) (Page ID #213–14). And

both Smith and Smith’s counsel agreed that they had no corrections to the presentence

investigation report (“PSR”), which described the two qualifying state convictions. Id. at 4 (Page

ID #212). As Smith’s appellate counsel has pointed out, however, based on the relevant state

records, it is not at all clear that Smith’s two convictions should have disqualified him from a

sentence reduction under § 3553(f). This is particularly true since it appears that none of these

state records were presented to the district court either at the sentencing or plea hearings. Def.’s

Mot. to Take Judicial Notice at 4. Notably, while these concerns do not invalidate his appellate

waiver, neither the majority’s decision today nor Smith’s plea agreement prohibit Smith from

filing a petition under 28 U.S.C. § 2255 raising a claim of ineffective assistance of counsel. For

the reasons stated above, I therefore concur in the judgment.




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