                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0160p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 04-1013
         v.
                                                    ,
                                                     >
 RODNEY MCGILVERY,                                  -
                           Defendant-Appellant. -
                                                   N
                    Appeal from the United States District Court
                   for the Eastern District of Michigan at Detroit.
                 No. 00-80583—Nancy G. Edmunds, District Judge.
                                           Argued: March 16, 2005
                                     Decided and Filed: April 5, 2005
            Before: COLE and GILMAN, Circuit Judges; POLSTER, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Mark H. Magidson, Detroit, Michigan, for Appellant. Graham L. Teall, ASSISTANT
UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Mark H.
Magidson, Detroit, Michigan, for Appellant. Graham L. Teall, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        POLSTER, District Judge. Defendant-Appellant Rodney McGilvery (“McGilvery”) appeals
his sentence of twenty-one months’ imprisonment following his conviction, pursuant to a guilty plea,
for misprision of felony in violation of 18 U.S.C. § 4. McGilvery raises three issues on appeal.
First, he argues that the government breached its plea agreement by failing to move for a downward
departure for substantial assistance under U.S. Sentencing Guidelines § 5K1.1. Next, he argues that
the district court abused its discretion when it denied his motion for a downward departure for
aberrant behavior under U.S. Sentencing Guidelines § 5K2.20. Finally, McGilvery argues that the
case should be remanded for re-sentencing in light of the Supreme Court’s decision in United States



        *
          The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                         1
No. 04-1013               United States v. McGilvery                                           Page 2


v. Booker, __ U.S. ___, 125 S.Ct. 738 (2005).1 For the reasons set forth below, we dismiss the
appeal for lack of jurisdiction.
                                             I. BACKGROUND
        On August 10, 2000, a federal grand jury issued a sealed indictment charging McGilvery and
others with one count of conspiracy to possess with intent to distribute and to distribute a controlled
substance (specifically, cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and 846. On March 7, 2001,
McGilvery was charged with the same offense in a superceding indictment. On July 18, 2003,
McGilvery was charged in a superceding information with one count of misprision of felony in
violation of 18 U.S.C. § 4. McGilvery pled guilty to the misprision charge pursuant to a written plea
agreement. In exchange, the government dismissed the remaining counts against him.
       The plea agreement provided that the government would seek a downward departure at
sentencing pursuant to U.S. Sentencing Guidelines § 5K1.1, or a reduction of sentence under Federal
Rule of Criminal Procedure 35, if it determined that McGilvery’s cooperation amounted to
substantial assistance in the investigation or prosecution of others. Under the terms of the plea
agreement, it was exclusively within the government’s discretion to determine whether McGilvery
had provided substantial assistance.
       The plea agreement also contained an appellate-waiver provision whereby McGilvery
waived any right to appeal his conviction or sentence, including any right under 18 U.S.C. § 3742
to appeal on the grounds that the sentence was imposed as a result of an incorrect application of the
sentencing guidelines, if the court imposed a sentence no greater than twenty-four months.
        On August 5, 2003, the district court held a plea hearing where the court confirmed that
McGilvery understood the terms of his plea agreement, including the appellate-waiver provision.
At the request of the court, the prosecutor summarized the terms of the plea agreement and
specifically explained that McGilvery agreed to waive his right to appellate review if the court
imposed a sentence no greater than twenty-four months. The court subsequently asked defense
counsel if he had anything to add to the prosecutor’s recitation, and defense counsel asserted that
the statement fairly represented the terms of the plea agreement. The court also asked McGilvery
if he understood and agreed with the terms of the plea agreement as described by the prosecutor, and
McGilvery responded affirmatively.
        On December 9, 2003, the district court held a sentencing hearing at which time the
government did not move for a downward departure under § 5K1.1 or make any reference to such
a motion. McGilvery raised no objection. At the sentencing hearing, defense counsel moved for
a downward departure for aberrant behavior. After hearing argument by defense counsel and
additional comments by McGilvery himself, the district court denied the motion to depart downward
for aberrant behavior, stating: “I don’t see a basis for a downward departure at this time, and so I’m
just going to sentence Mr. McGilvery at the bottom of the guidelines.” McGilvery was sentenced
to twenty-one months’ imprisonment, the low end of the Guidelines range for offense level 16,
Criminal History Category I (21-27 months).
                                                II. ANALYSIS
        We review the question of whether a defendant waived his right to appeal his sentence in a
valid plea agreement de novo. United States v. Murdock, 398 F.3d 491, 496 (6th Cir. Feb. 15, 2005)
(citations omitted). “‘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

       1
           The Booker argument was raised for the first time at oral argument.
No. 04-1013               United States v. McGilvery                                                             Page 3


(6th Cir. 2004) (quoting United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001) (internal
quotation marks and citation omitted)). McGilvery agreed, pursuant to a plea agreement, to waive
his right to appellate review if the district court imposed a sentence equal to or less than twenty-four
months. Here, the district court sentenced McGilvery to twenty-one months’ imprisonment. During
the plea colloquy, the district court complied with Federal Rule of Criminal Procedure 11(b)(1)(N),
which requires that, before a guilty plea is accepted, the court must inform the defendant of, and
determine that the defendant understands the terms of any appellate-waiver provision in the plea
agreement. See Murdock, 398 F.3d at 495-96, 499 (using plain-error analysis in holding that the
district court’s failure to inquire into the defendant’s understanding of the appellate-waiver provision
of the plea agreement rendered the waiver unenforceable). Here, the district court entrusted the
responsibility of summarizing the plea agreement to the government, and the government explained
that McGilvery agreed to waive his appellate rights on the condition that his sentence did not exceed
twenty-four months. Following the prosecutor’s recitation, the court ascertained that McGilvery
understood the appellate-waiver provision of his plea agreement. Accordingly, “there is nothing in
the record to suggest that . . . [the] defendant misunderstood the scope of his waiver of appellate
rights,” Calderon, 388 F.3d at 198-200 (dismissing two appeals where the plea agreement contained
an appellate-waiver provision, the language in the waiver provision was clear and unlimited, and the
only condition placed upon the waiver – the2 length of the sentence – was satisfied), and we lack
jurisdiction to consider McGilvery’s appeal.
        For the first time at oral argument, defense counsel argued that, even if McGilvery waived
his right to appellate review, the case should nevertheless be remanded for re-sentencing in light of
the Supreme Court’s decision in United States v. Booker, __ U.S. ___, 125 S.Ct. 738 (2005). The
Sixth Circuit directly addressed this issue in United States v. Bradley, ___ F.3d ____, No. 03-6328,
slip. op. at 1-2 (6th Cir. Mar. 10, 2005), and concluded that a defendant cannot seek an appellate
remand for re-sentencing under Booker where the plea agreement contains a provision waiving his
right to appeal his sentence.3
        The Court and the parties have unnecessarily devoted substantial time and resources on this
appeal. In order to avoid similar situations in the future, we strongly encourage the government to
promptly file a motion to dismiss the defendant’s appeal where the defendant waived his appellate
rights as part of a plea agreement, and to attach a copy of the appellate-waiver provision and the
transcript of the plea colloquy showing the district court’s compliance with Rule 11(b)(1)(N). Once
the defendant responds, the matter can then be referred to a motions panel for disposition.
                                               III. CONCLUSION
         For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.




         2
            McGilvery did not articulate any basis to attack the appellate-waiver provision (or even address the provision
at all) until oral argument. At oral argument, defense counsel argued that the government’s failure to file a motion for
substantial assistance under § 5K1.1 at sentencing constituted a material breach of the plea agreement and rendered the
appellate-waiver provision unenforceable. This argument lacks merit. McGilvery did not object below to the
government’s failure to move for a downward departure under § 5K1.1, and concedes on appeal that the plea agreement
vests to the government sole discretion to determine whether he provided substantial assistance.
         3
           During the plea colloquy, the district court informed Bradley of the material terms of his plea agreement,
including the appellate-waiver provision, and ascertained that Bradley understood and agreed to each of his concessions.
Bradley, slip. op. at 2.
