                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0749n.06

                                          No. 14-5894

                          UNITED STATES COURT OF APPEALS                            FILED
                               FOR THE SIXTH CIRCUIT                           Nov 13, 2015
                                                                           DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
LACEY WELD,                                              )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF TENNESSEE
       Defendant-Appellant.                              )
                                                         )
                                                         )



       Before: GRIFFIN and KETHLEDGE, Circuit Judges; CLELAND, District Court Judge.*

       KETHLEDGE, Circuit Judge. Between 2010 and 2013, Weld purchased supplies that

she and her co-defendants used to cook methamphetamine. She pled guilty to conspiring to

manufacture fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.

In her plea agreement, Weld agreed not to appeal any sentence below the top of the applicable

sentencing guidelines range determined by the district court.

       At Weld’s sentencing hearing, the government introduced a video that showed Weld—

then visibly pregnant—smoking meth while some of her co-defendants cooked meth. Less than

a month later, Weld gave birth to a son who showed signs of opiate and amphetamine exposure,

as well as drug-withdrawal symptoms.        As a result, the district court applied a six-level

enhancement for “creat[ing] a substantial risk of harm to the life of a minor,” pursuant to U.S.

*
 The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 14-5894
United States v. Lacey Weld

Sentencing Guidelines § 2D1.1(b)(13)(D). The court then varied downward from the guidelines

range.

         Weld appeals the application of the § 2D1.1 enhancement, arguing that it does not cover

unborn children. She acknowledges that she waived her right to appeal a within- or below-

guidelines sentence, but she says that enforcing the waiver would produce a “miscarriage of

justice.” An erroneous guidelines calculation, however, is not a miscarriage of justice that will

void an appellate waiver.     See United States v. Andis, 333 F.3d 886, 892 (8th Cir. 2003)

(en banc); United States v. Mathews, 534 F. App’x 418, 426 (6th Cir. 2013).

         Weld now argues that the enhancement is unconstitutional as applied to her—but she did

not raise the constitutional argument in the district court. As a result, we review only for plain

error. United States v. Dedman, 527 F.3d 577, 591 (6th Cir. 2008). Weld must therefore show,

among other things, that the error was “plain” or “obvious” under current law. United States v.

Olano, 507 U.S. 725, 732-34 (1993). Weld concedes that no court of appeals has held that

§ 2D1.1(b)(13)(D) is unconstitutional as applied to a pregnant woman. She also concedes that

her constitutional claims are matters of first impression for our court. See Reply Brief at 7-8.

That means that any error here was not plain. See, e.g., United States v. Jones, 108 F.3d 668,

672 (6th Cir. 1997) (en banc); see also United States v. Accardi, 669 F.3d 340, 348 (D.C. Cir.

2012) (“[Defendant’s] argument raises a question of first impression for this court which would

be inappropriate to address under plain error review”).

         The United States’ motion to dismiss is granted.




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