                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 11a0502n.06
                                                                                           FILED
                                            No. 08-4390
                                                                                      Jul 20, 2011
                            UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )
                                       )            ON APPEAL FROM THE UNITED
v.                                     )            STATES DISTRICT COURT FOR THE
                                       )            SOUTHERN DISTRICT OF OHIO
OSCAR RENE MUNOZ,                      )
                                       )            OPINION
      Defendant-Appellant.             )
                                       )
______________________________________ )

       Before: COLE, CLAY, and GILMAN, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge.                  Oscar Rene Munoz seeks to avoid the

application of the appellate-waiver provision in his plea agreement so that he can challenge the

reasonableness of his sentence. He and his brother Frank Munoz pled guilty to a conspiracy to

possess cocaine with the intent to distribute the drug. Oscar’s benefit from pleading guilty was that

the government agreed to dismiss another charge against him and to file a motion to reduce his

sentence if he cooperated with the government by implicating others. He argues that the government

breached the plea agreement, thereby rendering the appellate waiver unenforceable, by failing to

explain to the sentencing judge the extent of Oscar’s cooperation as fully as the government had

explained his brother’s cooperation during the latter’s separate sentencing hearing. For the reasons

set forth below, we DISMISS Oscar’s appeal due to the appellate-waiver provision in his plea

agreement.
                                        I. BACKGROUND

       In July 2007, a grand jury in the Southern District of Ohio returned a two-count indictment

charging Oscar Munoz, his brother Frank Munoz, and others with one count of conspiracy to possess

more than five kilograms of cocaine with the intent to distribute the drug, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(ii) and 846, and a second count of an attempt to possess more than five

kilograms of cocaine with the intent to distribute the drug, in violation of 21 U.S.C. § 846. Oscar

entered into a plea agreement in September 2007 whereby he pled guilty to Count 1 (the conspiracy

count) and the government agreed to drop Count 2 (the attempt count).

       In the plea agreement, Oscar expressly waived his right to appeal any sentence that did not

exceed the statutory maximum penalty, which in this case was life imprisonment. The government’s

attorney summarized the plea agreement, including the appellate-waiver provision, at Oscar’s change-

of-plea hearing. With regard to the appellate-waiver provision, he stated that

       [Oscar] understands and is aware that Title 18, Section 3742 of the United States Code
       affords him the right to appeal; however, in exchange for the United States’
       undertakings in this Plea Agreement, he waives his rights conferred by 18 U.S.C. 3742
       to appeal any sentence imposed except for the grounds that the sentence exceeds the
       statutory maximum penalty.

       The district court asked Oscar several times if the government’s recital of the terms of the plea

agreement matched Oscar’s understanding. Each time Oscar answered yes. The court also asked

Oscar if anyone from the government had promised him any form of leniency outside of the plea

agreement if he pled guilty. Oscar answered no.

       After accepting Oscar’s guilty plea, the district court considered Oscar’s bond status and his

prior bond violations. The court was reluctant to release Oscar on his own recognizance again, but

ultimately decided to do so. Two prominent reasons for the court’s decision were (1) that the


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government’s attorney noted that another failure by Oscar to appear while out on bond could result

in a harsher sentence under the terms of the plea agreement, and (2) that Oscar personally assured the

court that he would comply with the conditions of his release on bond.

        The district court then scheduled a sentencing hearing for January 2008. But Oscar absconded

shortly after his release on bond and, in October 2007, the district court issued a warrant for his arrest.

Oscar was finally found in Arizona in May 2008, taken into custody, and detained pending

sentencing.

        At the sentencing hearing held in September 2008, the Probation Office recommended that

Oscar be sentenced to 130 months’ imprisonment. The government then moved for a reduction in

Oscar’s sentence by filing a substantial-assistance motion under United States Sentencing Guidelines

§ 5K1.1, which the court granted. In fashioning Oscar’s sentence, the court considered the various

statutory sentencing factors, but also noted that Oscar’s sentence “should take into account the

defendant’s past bond violations and his absconding supervision.” The court ultimately sentenced

Oscar to 87 months’ imprisonment, followed by five years of supervised release, as well as a fine and

enrollment in addiction-treatment programs while he was in prison and out on supervised release.

        Oscar timely appealed. The government responded by filing a motion to dismiss the appeal

on the ground that Oscar had waived the right to appeal his sentence in the plea agreement.

                                         II. JURISDICTION

        Even where a defendant has waived the right to appeal, this court retains jurisdiction to hear

the defendant’s challenge to the judgment of the district court. United States v. Caruthers, 458 F.3d

459, 472 n.6 (6th Cir. 2006) (noting that although “we have said that a valid appellate waiver leaves

this court without jurisdiction to hear a sentencing appeal,” we have also “affirmed sentences


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challenged by defendants who had validly waived their appeals . . . , suggesting that an appellate

waiver does not divest this court of jurisdiction”) (emphasis in original)). Enforcing appellate waivers

to dismiss appeals “fits comfortably in the rubric of a mere claim-processing rule . . . and therefore

should not be labeled ‘jurisdictional.’” Id.

                                          III. ANALYSIS

       Oscar argues on appeal that his sentence is procedurally and substantively unreasonable. The

government counters that Oscar has waived his right to appeal on this basis because the plea

agreement expressly waives his right to challenge any sentence imposed except on the grounds that

the sentence exceeds the statutory maximum penalty. Oscar has two responses: (1) the appellate-

waiver provision in the plea agreement is unenforceable because the government breached the plea

agreement, and (2) even if the appellate waiver is enforceable, he did not waive the right to appeal

the reasonableness of his sentence. We will address each argument in turn.

       A.      Breach-of-plea-agreement issue

       If the government materially breaches a plea agreement, then any appellate waiver contained

in the agreement is unenforceable. United States v. Swanberg, 370 F.3d 622, 626-29 (6th Cir. 2004)

(holding that the defendant could appeal his sentence even though he had validly waived his right to

appeal because the government materially breached the plea agreement). Oscar argues that the

government breached the present plea agreement “by failing to make the same factual statement about

his cooperation that was made to the benefit of Frank Canez Munoz, thereby rendering the provision

in the plea agreement waiving his right to appeal his sentence unenforceable.” Specifically, Oscar

contends that the government provided more detailed information about the brothers’ cooperation in

a sealed sidebar conference during Frank’s sentencing hearing than it did during Oscar’s sentencing


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hearing. Oscar did not learn about this difference until well after his own sentencing, when his

attorney obtained a transcript of the sealed sidebar conference involving his brother Frank.

       Appellate courts ordinarily review de novo the issue of whether a plea agreement was

breached. Swanberg, 370 F.3d at 627. The government, however, asserts that this issue should

instead be reviewed under the plain-error standard because Oscar did not argue that the government

breached the plea agreement at his sentencing hearing. We acknowledge that the government’s

position is not without support: “This court’s decisions . . . have consistently applied plain-error

review where a defendant fails to claim during sentencing that the government has breached the plea

agreement.” Id. But because Oscar had no knowledge of the alleged breach until after his sentencing,

he was not able to raise this objection at sentencing, which weighs in favor of applying de novo

review. We need not decide which standard of review to use in this case, however, because Oscar

cannot show a breach of the plea agreement even under the more lenient de novo standard.

       Turning now to the merits of Oscar’s argument, “we use traditional contract law principles

in interpreting and enforcing” plea agreements because they are contractual in nature. United States

v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011) (internal quotation marks omitted). “But because 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 the plea

agreements.” Id. (internal quotation marks and ellipsis omitted). We therefore construe such

ambiguities against the government, especially because the government has the ability to draft plea

agreements more precisely to avoid imprecision. Id. at 360-61.




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       We find Oscar’s argument that the government breached the plea agreement unpersuasive

because its premise—that the government promised as part of the plea agreement to make the same

factual statement during Oscar’s sentencing hearing about his cooperation as it had made during his

brother’s hearing about the latter’s cooperation (the “similar-statements promise”)—has no support

in the record. The plea agreement in this case does not require the government to make any specific

factual statement about Oscar’s cooperation, let alone the same factual statement that it made about

Frank’s cooperation. In exchange for Oscar’s plea and cooperation, the government made three

promises: (1) to dismiss Count 2 of the Indictment after Oscar was sentenced on Count 1; (2) to not

charge Oscar with additional nonviolent crimes based solely on Oscar’s conduct underlying the

current charges; and (3) if the government determined in its sole discretion that Oscar continued to

provide substantial assistance, then it would file a motion seeking to reduce Oscar’s sentence based

on his assistance.

       None of the above promises match the similar-statements promise that Oscar alleges was

breached. Moreover, the integration clause in the plea agreement (which Oscar fails to address)

reinforces the conclusion that the alleged similar-statements promise is not part of the plea agreement.

This clause provides that “[t]his written Agreement embodies all of the agreements and

understandings between the United States Attorney for the Southern District of Ohio and the

defendant. No conversations, discussions, understandings, or other documents extraneous to the

Agreement shall be considered part of the Agreement.” And Oscar confirmed during the change-of-

plea hearing that no one from the government had promised him any form of leniency beyond the plea

agreement itself. Because the plain language of the plea agreement shows that the alleged similar-




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statements promise is not a part of the agreement, the government could not possibly have breached

a nonexistent promise. The appellate-waiver provision in the plea agreement is therefore enforceable.

       B.      Waiver of Oscar’s appellate rights

       Oscar’s remaining argument is that even if the appellate-waiver provision is valid, he did not

waive the right to challenge the reasonableness of his sentence because the district court was obligated

to sentence him in accordance with 18 U.S.C. § 3553(a). That may indeed be true, but there is still

no merit to his argument that this alleged obligation somehow grants him the right to appeal the

reasonableness of his sentence. “It is well settled that a defendant in a criminal case may waive any

right, even a constitutional right, by means of a plea agreement.” United States v. Calderon, 388 F.3d

197, 199 (6th Cir. 2004). Oscar expressly agreed to a broad waiver of his appellate rights under the

plea agreement:

       The defendant is aware that Title 18, United States Code, Section 3742, affords the
       defendant the right to appeal the sentence imposed in this case. Acknowledging this,
       in exchange for the undertakings made by the United States in this plea agreement, the
       defendant hereby waives all rights conferred by 18 U.S.C. § 3742 to appeal any
       sentence imposed except for the grounds that the sentence exceeds the statutory
       maximum penalty.

(Emphasis added.)

       The above language unambiguously encompasses Oscar’s sentence. He was sentenced to 87

months’ imprisonment, far less than the statutory maximum penalty for his offense, which is life

imprisonment, see 21 U.S.C. § 841(b)(1)(A). Oscar therefore cannot avail himself of the sole

exception in the appellate-waiver provision. Moreover, 18 U.S.C. § 3742 is the “exclusive avenue”

for a party to “appeal a sentence imposed as the result of a run-of-the-mill plenary sentencing

proceeding following a conviction.” United States v. Bowers, 615 F.3d 715, 719 (6th Cir. 2010)



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(internal quotation marks omitted). Because Oscar waived all rights conferred by 18 U.S.C. § 3742

to appeal any sentence that did not exceed the statutory maximum penalty, Oscar has no basis to avoid

his appellate waiver.

       Moreover, the proper procedure was followed by the district court below in accepting Oscar’s

plea. The prosecutor set forth the terms of the appellate-waiver provision in open court and the

district judge made sure that Oscar understood those terms before accepting his guilty plea. See

United States v. McGilvery, 403 F.3d 361, 363 (6th Cir. 2005) (summarizing the proper procedure

for accepting guilty pleas where the plea agreement contains an appellate-waiver provision).

Although Oscar correctly states the well-settled principle that “a defendant who waives his right to

appeal does not subject himself to being sentenced entirely at the whim of a district court,” his

procedural- and substantive-reasonableness challenges do not rise to the level that this principle

contemplates. See United States v. Caruthers, 458 F.3d 459, 471-72 (6th Cir. 2006) (illustrating the

narrow scope of this principle by noting the following two examples of nonwaivable rights: (1) the

right to appeal sentences above the statutory maximum, or (2) the right to “attack sentences based on

constitutionally impermissible criteria like race”).

                                        IV. CONCLUSION

       For all of the reasons set forth above, we DISMISS Oscar’s appeal.




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