                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0644n.06

                                            No. 12-1800

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )                       FILED
                                                     )                     Jul 10, 2013
       Plaintiff-Appellee,                           )            DEBORAH S. HUNT, Clerk
                                                     )
v.                                                   )
                                                     )       ON APPEAL FROM THE
JAMES ANDREW KOHN,                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE WESTERN
       Defendant-Appellant.                          )       DISTRICT OF MICHIGAN
                                                     )


       BEFORE: SILER and COLE, Circuit Judges; DOWD, District Judge.*


       PER CURIAM. James Andrew Kohn appeals through counsel the sentence imposed

following his guilty plea to a charge of sexual exploitation of a child.

       On two occasions in 2010, Kohn photographed himself sexually abusing his eleven-year-old

daughter. He was prosecuted in state court for two counts of first-degree criminal sexual conduct

and was sentenced to eighteen years nine months to fifty years of imprisonment. Federal authorities

prosecuted him for the photographs, and he entered a guilty plea in 2012, pursuant to a plea

agreement. His presentence report calculated his guidelines sentencing range at 360 months to life

imprisonment, but the statutory maximum sentence for the offense is thirty years, which became the

guidelines range. The district court imposed that sentence, to run concurrently with Kohn’s state

sentence.

       *
        The Honorable David D. Dowd, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 12-1800
United States v. Kohn

       Kohn argues on appeal that his sentence is unreasonable because the district court placed too

much emphasis on his statement of the factual basis for the plea. Kohn stated that “I took

photographs of a female under 18 years old having sex,” which the district court felt minimized the

seriousness of Kohn’s offense. Additionally, Kohn argues that the sentence is unreasonable because

he did not distribute the photographs. The government moved to dismiss the appeal because Kohn

had waived the right to appeal a sentence at or below the maximum of the guidelines range in his

plea agreement. A panel of this court denied the motion without prejudice and asked for further

briefing of the question. Kohn argues that his appeal waiver is unenforceable because the magistrate

judge did not sufficiently explain the appeal waiver during the plea hearing.

       A defendant in a criminal case may waive the right to appeal, so long as the waiver is

knowing and voluntary; such a waiver precludes appellate review. United States v. Fleming, 239

F.3d 761, 763-65 (6th Cir. 2001). In Kohn’s plea agreement, he waived the right to appeal a

sentence at or below the maximum of the guidelines range, but he retained the right to appeal any

issue that the guidelines range was incorrectly determined, or a sentence greater than the statutory

maximum or based on unconstitutional factors. Kohn is not raising in this appeal any of the issues

that he retained. At the plea hearing, the magistrate judge asked Kohn if he had read the plea

agreement and gone over it with his attorney, and Kohn responded that he had. The magistrate judge

informed Kohn that the agreement required him to give up some of his appellate rights, and Kohn

responded that he understood that provision. The prosecutor, in summarizing the plea agreement,

also noted that Kohn was waiving certain of his rights to appeal.



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No. 12-1800
United States v. Kohn

       Kohn relies on United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005), in which an

appellate waiver provision in a plea agreement was found unenforceable. However, that case is

distinguishable, as the defendant in that case was not asked if he had read the plea agreement, and

neither the judge nor the prosecutor mentioned the appellate waiver provision during the plea

hearing. We have also upheld an appeal waiver where only the prosecutor explained the waiver

during the plea hearing. United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006). We find Kohn’s

case more similar to Wilson than Murdock. Because Kohn knowingly and voluntarily waived his

right to appeal his sentence on the grounds raised here, we grant the government’s motion to dismiss

the appeal.

       Appeal dismissed.




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