                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0757n.06

                                        Case No. 13-3987

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                               FILED
UNITED STATES OF AMERICA,                           )                     Oct 02, 2014
                                                    )                DEBORAH S. HUNT, Clerk
         Plaintiff-Appellee,                        )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
DEONDRAY O’NEAL BRADLEY,                            )       OHIO
                                                    )
         Defendant-Appellant.                       )
                                                    )
                                                    )       OPINION


BEFORE: DAUGHTREY, ROGERS, and DONALD, Circuit Judges.

         BERNICE BOUIE DONALD, Circuit Judge. Defendant-Appellant, Deondray O’Neal

Bradley, appeals his sentence for one count of possession with intent to distribute heroin,

21 U.S.C. § 841(b)(1)(C), and for one count of conspiracy to obstruct justice, 18 U.S.C. § 371.

Bradley contends (1) that the district court erroneously determined that he was a career offender

under § 4B1.1 of the United States Sentencing Guidelines (“U.S.S.G.”), which improperly added

five years to his sentence, and (2) that he received ineffective assistance of counsel. Because the

district court implemented the parties’ Rule 11(c)(1)(C) agreement, and because we do not

address ineffective-assistance claims on direct appeal, we AFFIRM the judgment of the district

court.
Case No. 13-3987
United States v. Bradley

                                                   I.

        On April 11, 2012, a grand jury returned a six-count superseding indictment against

Bradley and two co-defendants, Faith D. Blanks and Zakkee A. Sears. The first three counts

charged Bradley with various drug-trafficking offenses, including possession with intent to

distribute heroin (Count One); maintaining a place to manufacture, distribute, and possess heroin

(Count Two); and distribution of heroin (Count Three). The remaining three counts charged

Bradley and his co-defendants with conspiracy to obstruct justice (Count Four); obstruction of

justice (Count Five); and witness tampering (Count Six).

        On May 3, 2013, Bradley pleaded guilty to Counts One and Four of the superseding

indictment pursuant to a written plea agreement under Federal Rule of Criminal

Procedure 11(c)(1)(C).      In exchange for a guilty plea as to Counts One and Four, the

Government agreed to dismiss the remaining counts. In the plea agreement, the parties agreed

that Bradley’s combined offense level was 25, acknowledging the possibility that Bradley

qualified as a career offender under § 4B1.1 of the Sentencing Guidelines, which would increase

his offense level to 32.1 Although a finding of career-offender status would subject Bradley to a

statutory maximum of 240 months’ incarceration, the parties agreed to limit Bradley’s sentence

to ten years (120 months).

        On June 24, 2013, the district court accepted the parties’ plea agreement. At a sentencing

hearing held on August 12, 2013, the district court sentenced Bradley to concurrent sentences of

120 months and three years of supervised release with a $200 special assessment as to both

Counts One and Four.




1
  The presentence investigation report (“PSR”) concluded that Bradley was a career offender, citing prior
convictions for heroin- and cocaine-related offenses.

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Case No. 13-3987
United States v. Bradley

                THE COURT: The guideline calculation obviously calls for a greater
        sentence, but since there has been an agreement by counsel for the government
        and counsel for the defendant and the agreement was accepted by the judge who
        previously presided over this case, I’m not going to disturb the agreement other
        than to say that if the guideline calculation was determined, it would be much
        higher.
                I think the offense level – well, there’s a dispute as to whether it’s 25 or
        32. And I think the criminal history category is VI, if I recall. No, it’s not that.
        The total criminal history score is 7, so it would be a IV.
                So the sentence, obviously if I followed the guidelines, would be much
        greater, but I have concluded that I should not tamper with that agreement and
        approve the same, so that’s why the sentence is 120 months.
                Now, . . . does the defendant have any objection to the sentence as
        pronounced?
                [DEFENSE COUNSEL]: No objection, Your Honor.

The district court entered judgment on August 15, 2013. Bradley timely appealed on August 22,

2013.

                                                  II.

        We first address Bradley’s challenge to his 120-month sentence. We then decline to

address Bradley’s ineffective-assistance claim.

                                                  A.

        When a district court offers a defendant the opportunity to object to a sentence and the

defendant fails to do so, we review challenges to the sentence on appeal for plain error. United

States v. Simmons, 587 F.3d 348, 374 (6th Cir. 2009); United States v. Vonner, 516 F.3d 382,

385-86 (6th Cir. 2008) (en banc).       “Plain-error review requires us to determine whether:

(1) there was an error, (2) the error was obvious or clear, (3) the error affected the defendant’s

substantial rights, and (4) this adverse impact seriously affected the fairness, integrity, or public

reputation of the judicial proceedings.” United States v. Tate, 516 F.3d 459, 465 (6th Cir. 2008)

(quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)) (internal quotation marks

omitted).


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Case No. 13-3987
United States v. Bradley

       Bradley argues that his “lengthy sentence is attributable to the trial court’s erroneous

determination that [he] was a ‘career offender’ under the Sentencing Guidelines.” (Appellant’s

Br. at 10.) The Government responds that Bradley requested and received an agreed-upon

sentence, thereby precluding him from ascribing error to the district court. The Government

further asserts that the trial court did not declare Bradley to be a career offender, but rather

applied the sentence as set forth in the Rule 11(c)(1)(C) plea agreement. The latter argument

prevails.

       The record belies Bradley’s assertion that the district court sentenced him as a career

offender. Just before the sentencing hearing concluded, the district judge had the following

exchange with defense counsel:

               [DEFENSE COUNSEL]: Judge, I have one question. Just so I am clear
       on this, the court has not entered a finding of whether [Bradley is] a career
       offender or not. The court has just agreed that the Rule 11 plea negotiations
       should be followed?
               THE COURT: Yes.
               [DEFENSE COUNSEL]: Okay.
               THE COURT: I’m not going to worry about a career offender. The
       defendant and the government agreed to a 120-month sentence. Judge Wells
       approved that. And I am not about to back up from that. I’m not sure I’d had
       done it if it had been before me originally, but as far as I am concerned, it’s a fact
       accomplished. That’s why I sentenced him to 120 months.
               [DEFENSE COUNSEL]: Okay.

       Contrary to Bradley’s assertion that the 120-month sentence “is due primarily to him

being classified as a ‘career offender’” (Appellant’s Br. at 2), the conversation above confirms

that the sentence is simply a product of the parties’ plea agreement. When a district court

accepts a Rule 11(c)(1)(C) plea agreement, “it is bound by the bargain.” United States v.

Mandell, 905 F.2d 970, 972 (6th Cir. 1990).          “[P]lea agreements must be interpreted in

accordance with ordinary contract principles, with the intent of the parties ascertained primarily

through the chosen wording of their agreement, and with any ambiguities construed against the

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Case No. 13-3987
United States v. Bradley

Government.” United States v. Hogg, 723 F.3d 730, 744 (6th Cir. 2013). The plea agreement in

this case contains the following unambiguous provisions:

                 14. Joint Recommendation of Appropriate Sentence. After considering
         the factors in 18 U.S.C. § 3553(a), the parties agree that the appropriate sentence
         is 120 Months (10 years) and will request[] that the Court impose a sentence of
         120 months.
                 ....
                 . . . . [T]he parties realize that [Bradley] may be classified as a career
         offender based upon his prior criminal record. The parties agree that if [Bradley]
         is found to be a career offender, his adjusted base offense level will be 32
         pursuant to U.S.S.G. § 4B1.1(b). However the parties agree that the appropriate
         sentence is 120 months (10 years).

         The district court did not commit plain error by imposing the sentence to which the

parties agreed in the plea agreement, as required by the Rule. Fed. R. Crim. P. 11(c)(1)(C)

(agreed-upon sentence “binds the court once the court accepts the plea agreement”).

Accordingly, we deny Bradley’s challenge to his 120-month sentence.2

                                                            B.

         “This Court typically will not review a claim of ineffective assistance on direct appeal

except in rare cases where the error is apparent from the existing record.” United States v.

Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006). Such claims are more appropriately raised in

a post-conviction proceeding brought pursuant to 28 U.S.C. § 2255. Id. Bradley’s ineffective-

assistance-of-counsel claim would require some evidence as to whether career-offender status

would have actually held up to scrutiny. This case therefore does not fall into the narrow

category of ineffective-assistance claims properly addressed on direct appeal.




2
 In his reply brief, Bradley raises for the first time an argument that the district judge failed to ensure explicitly that
Bradley had reviewed the PSR with his attorney, as required by Federal Rule of Criminal Procedure 32(i)(1)(A).
This Court has held on numerous occasions “that an issue is waived when it is not raised in the appellant’s opening
brief.” United States v. Pritchett, 749 F.3d 417, 434 (6th Cir. 2014) (citing Fed. R. App. P. 28(a); Miller v. Admin.
Office of Courts, 448 F.3d 887, 893 (6th Cir. 2006)).

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United States v. Bradley

                                             III.

       For the reasons stated above, we AFFIRM the judgment of the district court.




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