                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0360n.06
                                                                                            FILED
                                           No. 10-4619
                                                                                      May 26, 2011
                          UNITED STATES COURT OF APPEALS
                                                                                LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
DINESH BAFNA,                                             )   THE NORTHERN DISTRICT OF
                                                          )   OHIO
       Defendant-Appellant.                               )
                                                          )
                                                          )



       Before: ROGERS and KETHLEDGE, Circuit Judges; RUSSELL, Chief District Judge.*

       KETHLEDGE, Circuit Judge. Dinesh Bafna owned and operated a company that sold raw

granite slabs. On two occasions, Bafna provided free granite for a Cuyahoga County tax auditor’s

home. Shortly after each delivery, Bafna received a favorable property-tax adjustment—the first for

his business, the second for his residence. Neither adjustment was the result of a formal proceeding;

the auditor made the changes on his own. The federal government eventually began investigating

the auditor for corruption and subpoenaed Bafna regarding these transactions. Bafna cooperated

fully and ultimately pled guilty to one count of Hobbs Act conspiracy under 18 U.S.C. § 1951.

       Prior to sentencing, Bafna moved for a two-level downward variance because the parties had

misread the Sentencing Guidelines when drafting his initial plea. The district court granted the

       *
         The Honorable Thomas B. Russell, United States Chief District Judge for the Western
District of Kentucky, sitting by designation.
No. 10-4619
United States v. Bafna

motion. As a result, Bafna’s Guidelines range was four to ten months’ imprisonment. The

government recommended that Bafna be sentenced to probation and home detention. But the

sentencing court found that Bafna had not fully accepted responsibility for his actions; and thus it

sentenced him to six months’ imprisonment, restitution, a $10,000 fine, and three years’ supervised

release. Bafna filed a motion to correct or amend the sentence, which the district court denied.

Bafna then filed this appeal.

       The government argues that we should dismiss the appeal because, as part of his plea, Bafna

waived the right to appeal any sentence that did not exceeded the statutory maximum or his

Guidelines range. Bafna’s sentence in fact did not exceed either of those limits, and he further

admits that his waiver was voluntary. He asks us to hear his appeal nonetheless, because he says the

district court’s sentence was based on “unsupported and improper” considerations, and effects a

“miscarriage of justice.” Specifically, Bafna think it was unfair for the district court to have

criticized him for failing to admit that he actually knew his conduct amounted to a bribe, rather than

admitting only that he should have known it was a bribe.

       We typically enforce a defendant’s waiver of his right to appeal, disregarding the waiver only

in rare circumstances, such as when a sentence is based on racial discrimination or exceeds the

statutory maximum. See United States v. Caruthers, 458 F.3d 459, 471 (6th Cir. 2006). Neither of

those circumstances is present here.      But Bafna says we should broaden our exception to

enforcement of appellate waivers, to include cases where the sentence amounts to a miscarriage of

justice. The First Circuit follows this approach. See United States v. Teeter, 257 F.3d 14, 25 (1st

Cir. 2001).

                                                 -2-
No. 10-4619
United States v. Bafna

       This case does not present the question whether to adopt that approach, because there was

no miscarriage of justice here. Bafna received a downward variance and a within-Guidelines

sentence. None of the procedural objections that he raises with respect to his sentence give us any

concern that the sentence itself was a miscarriage of justice. The district court was not bound by the

parties’ factual stipulations, such as whether Bafna had a greater degree of culpability than

“deliberate ignorance,” see United States v. Davidson, 409 F.3d 304, 311 (6th Cir. 2005), and the

district court did not rely on “conspicuously false” information in making its sentencing decision.

See United States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010). And the factors that the district court

considered in determining Bafna’s sentence surely did not violate any constitutional guarantees. We

therefore enforce Bafna’s waiver and dismiss his appeal.




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