                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1024n.06

                                            No. 11-3071
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS
                                                                                      Sep 21, 2012
                                                                               DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE
v.                                                        )        NORTHERN DISTRICT OF
                                                          )        OHIO
DEWAYNE D. ELLIS,                                         )
                                                          )                  OPINION
       Defendant-Appellant.                               )




BEFORE: NORRIS, McKEAGUE, and KETHLEDGE, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Pursuant to a written agreement, Dewayne D. Ellis

pleaded guilty to possession of “50 grams or more” of crack cocaine with the intent to distribute in

violation of 21 U.S.C. § 841. At a sentencing hearing, the district court applied the so-called “crack

cocaine” amendments of the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3,

2010), which had gone into effect after Ellis’s offense but before the hearing, to reduce Ellis’s

applicable guidelines range. The court then imposed a total sentence of 110 months, the low end of

the reduced range.

       The government filed a notice of appeal from the district court’s judgment, challenging the

court’s application of the Fair Sentencing Act. Shortly thereafter, Ellis filed a notice of appeal. In

his cross appeal, Ellis argues that the district court erred by enhancing his sentence for obstruction

of justice while denying him a downward adjustment for acceptance of responsibility. He further
                                                                                        United States v. Ellis
                                                                                                No. 11-3071

argues that the district court should have applied a fifteen-month credit against his federal sentence

for time spent in state custody on an unrelated conviction.

       The government later voluntarily dismissed its appeal in accordance with a directive from

the Attorney General changing the government’s official litigating position with regards to the Fair

Sentencing Act. The government then filed a motion to dismiss Ellis’s cross appeal based upon an

appellate waiver provision contained in his plea agreement. This waiver limited Ellis’s right of

appeal to any punishment in excess of either the statutory maximum penalty or the maximum

sentencing range as determined by the advisory sentencing guidelines.

       For the reasons outlined below, we grant the government’s motion and dismiss this appeal.

                                                  I.

       We review de novo whether a defendant waived his right to appeal his sentence in a valid

plea agreement. United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003). Any ambiguities or

imprecisions in a plea agreement are construed against the government. United States v. Fitch, 282

F.3d 364, 367—68 (6th Cir. 2002). When a defendant waives his right to appeal his sentence in a

valid plea agreement, we are bound by that agreement and will not review the sentence except in

limited circumstances. Smith, 344 F.3d at 483.

       Ellis does not contend that his appeal falls within the terms of either exception to his waiver.

Instead, he argues that because the waiver does not “contain any language as to Appellant’s right to

cross appeal” and the government “could have avoided any ‘imprecision’ as to Appellant’s right to

cross appeal by including language . . . precluding” a cross appeal, his appeal is not barred.




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                                                                                         United States v. Ellis
                                                                                                 No. 11-3071

        Since Ellis disputes only that a cross appeal is covered by his agreement not to “appeal the

conviction or sentence,” the substance of his argument must be that his cross appeal is somehow not

an appeal. That argument need not delay us long. In his notice of appeal, Ellis clearly expressed his

intention to “appeal[] . . . from the sentencing judgment entered on November 30, 2010.” He raises

numerous challenges to his within-Guidelines sentence in his appellate brief and, as the government

voluntarily dismissed its appeal over a year ago, Ellis is proceeding as the sole appellant.

        In support of his contention that he may appeal due to the absence of the word “cross” in the

waiver, Ellis relies entirely on United States v. Bowman, 634 F.3d 357 (6th Cir. 2011). In Bowman,

the defendant entered into a waiver that precluded his appealing “any sentence which is at or below

the maximum of the guidelines range as determined by the Court.” Id. at 361. He nonetheless

sought to appeal his within-Guidelines sentence, arguing that the district court improperly imposed

his federal sentence consecutively to existing state sentences pursuant to U.S.S.G. § 5G1.3(c). Id.

at 360. The government moved to dismiss his appeal based on the waiver. Id. The defendant

responded that he was not seeking to appeal the federal sentence itself, as that would have fallen

within the waiver, but, instead, he was appealing only the district court’s decision to have his federal

sentence run consecutively to his state sentences. Id. at 360—61. We agreed with Bowman that the

appellate waiver did not unambiguously bar the appeal:

        The issue here is whether [the language of the plea agreement] covers a challenge
        under U.S.S.G. § 5G1.3(c) to the district court’s imposition of a federal sentence that
        runs consecutively to an undischarged state sentence. . . . No reference is made to
        either the state sentence or to U.S.S.G. § 5G1.3(c) in the plea agreement. The
        government could have avoided any imprecision on this issue by including language
        that would have precluded Bowman from challenging the district court’s application


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                                                                                         United States v. Ellis
                                                                                                 No. 11-3071

        of U.S.S.G. § 5G1.3, but it did not do so. Bowman thus has a strong argument that
        the plea agreement is ambiguous on this issue.


Id. at 361.

        Here, although Ellis’s appellate waiver is silent as to “cross appeals,” there is no ambiguity.

Whether styled as an appeal or as a cross appeal, the effect is the same: a challenge to the defendant’s

sentence. This is precisely what the appellate waiver provision precludes, with limited exceptions

not at issue here. Ellis entered into a knowing and voluntary agreement and received a favorable

sentence under the advisory guidelines. Absent ambiguity–and there is none–he cannot pick and

choose among the various provisions of his plea agreement as he seeks to do now. We hold that

Ellis waived his right to appeal.

                                                        II.

        The motion to dismiss the defendant’s cross appeal is granted and the cross appeal is

dismissed.




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