                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0232n.06

                                            No. 18-3971


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
 UNITED STATES OF AMERICA,                        )                                Apr 28, 2020
                                                  )                           DEBORAH S. HUNT, Clerk
         Plaintiff-Appellee,                      )
                                                  )
 v.                                               )     ON APPEAL FROM THE UNITED
                                                  )     STATES DISTRICT COURT FOR THE
 ANTOINE JEFFERSON,                               )     NORTHERN DISTRICT OF OHIO
                                                  )
         Defendant-Appellant.                     )


BEFORE:        DAUGHTREY, GIBBONS, and MURPHY, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Pursuant to a written agreement with

the government, defendant Antoine Jefferson pleaded guilty to a charge of conspiracy to possess

with intent to distribute and to distribute heroin, cocaine, crack cocaine, and marijuana and to a

charge of possession of firearms in furtherance of a drug-trafficking crime. Varying downward

from the applicable United States Sentencing Guidelines punishment range, the district court

sentenced Jefferson to time served on the conspiracy count, to a consecutive sentence of 60 months

on the firearms charge, and to an effective supervised release term of five years. Jefferson now

asks us to hold that his plea was not entered knowingly and voluntarily because the government

failed to offer a factual basis to conclude that the firearms found during a search of the defendant’s

residence belonged to him or were possessed in furtherance of a drug-trafficking crime. He further

contends that the mandatory-minimum five-year sentence provided for by 18 U.S.C.

§ 924(c)(1)(A)(i) for the firearms charge is unconstitutional. In response, the government moves
No. 18-3971, United States v. Jefferson


to dismiss Jefferson’s appeal on the ground that the defendant waived his appellate rights in the

plea agreement.

       In light of ambiguous statements made by the magistrate judge at Jefferson’s plea hearing

and by the district judge at sentencing regarding the ability of the defendant to challenge his

appellate waiver, we deny the government’s motion to dismiss and address the issues raised on

appeal by Jefferson. Doing so, we find no merit to the defendant’s allegations of error and affirm

the judgment of the district court.

                      FACTUAL AND PROCEDURAL BACKGROUND

       After an investigation into a wide-ranging drug-distribution organization, the federal

government secured a 33-count indictment against 21 defendants.          In that indictment, the

government charged Antoine Jefferson with: conspiring to possess with intent to distribute and to

distribute heroin, cocaine base (crack cocaine), cocaine, and marijuana (Count 1); possessing with

intent to distribute cocaine (Count 12); possessing firearms in furtherance of a drug-trafficking

crime (Count 13); and using of a telephone to facilitate a drug felony (Count 30). Prior to trial,

however, Jefferson and the government reached a plea agreement by which the defendant would

plead guilty to Counts 1 and 13 of the indictment in exchange for dismissal of the remaining two

counts against him.

       In addition, the agreement memorialized the parties’ calculation that Jefferson’s crimes

corresponded to a Guidelines base offense level of 18 for the conspiracy charge and a consecutive,

mandatory-minimum sentence of five years on the firearms charge.              Because Jefferson

“affirmatively accepted personal responsibility” for his conduct, the agreement further provided

that the government would recommend that the district court grant a three-level reduction in the




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defendant’s offense level under U.S.S.G. § 3E1.1(a) and (b). The agreement also provided for a

waiver of most of Jefferson’s appellate rights, stating:

       Defendant acknowledges having been advised by counsel of Defendant’s rights, in
       limited circumstances, to appeal the conviction or sentence in this case, including
       the appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or
       sentence collaterally through a post-conviction proceeding, including a proceeding
       under 28 U.S.C. § 2255. Defendant expressly and voluntarily waives those rights,
       except as specifically reserved below. Defendant reserves the right to appeal:
       (a) any punishment in excess of the statutory maximum; or (b) any sentence to the
       extent it exceeds the maximum of the sentencing imprisonment range determined
       under the advisory Sentencing Guidelines in accordance with the sentencing
       stipulations and computations in this agreement, using the Criminal History
       Category found applicable by the Court. Nothing in this paragraph shall act as a
       bar to Defendant perfecting any legal remedies Defendant may otherwise have on
       appeal or collateral attack with respect to claims of ineffective assistance of counsel
       or prosecutorial misconduct.

       By agreement of the parties, a magistrate judge presided over the hearing to determine the

validity and voluntariness of the defendant’s guilty plea. At that hearing, the magistrate judge

meticulously detailed the elements of the crimes to which Jefferson was pleading guilty and

determined that the defendant understood those elements and the attendant potential punishments.

Additionally, the magistrate judge went through most paragraphs of the plea agreement and asked

Jefferson if he agreed with the stated terms. In each case, the defendant answered in the

affirmative.

       The government then detailed the evidence it would have introduced at trial had a plea

agreement not been reached. In that recitation, the government stated that the evidence would

show, in relevant part, that “[o]n or about June 10th, Mr. Jefferson knowingly possessed firearms

to protect, in furtherance of his drug trafficking activities, to wit this conspiracy to possess [with]

intent to distribute and to distribute cocaine.” When asked whether he agreed with the prosecutor’s

summary, Jefferson answered “Yes, Your Honor.” And when the magistrate judge asked Jefferson

if anything stated by the government’s lawyer was incorrect, the defendant responded, “No, sir.”


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Finally, when the magistrate judge specifically inquired of Jefferson whether he was pleading

guilty to the offenses outlined in Counts 1 and 13 because he was, in fact, guilty of those offenses,

the defendant answered, “Yes, Your Honor.”

       Consequently, the magistrate judge concluded that Jefferson knowingly and voluntarily

wished to plead guilty to the charges of conspiracy and of possession of firearms in furtherance of

a drug-trafficking offense. Before doing so, however, the magistrate judge again went over the

terms of the appellate-waiver provision of the plea agreement to ensure Jefferson’s understanding

of that waiver. In doing so, in addition to recounting the language of the provision, the magistrate

judge informed Jefferson that “[s]uch waivers are enforceable, but if you believe that the waiver is

unenforceable, you can present that theory to the appellate court.” (Emphasis added.)

       The district court reviewed the conclusions of the magistrate judge de novo and adopted

the recommendation that Jefferson’s guilty plea be accepted as knowing and voluntary. At the

ensuing sentencing hearing, however, the district court noted that, despite the plea agreement’s

stipulation that Jefferson’s base offense level for his conspiracy conviction should be 18, the

presentence report more accurately calculated the base offense level at 24. Thus, with a three-

level downward departure to reward the defendant for his acceptance of responsibility, the

applicable Guidelines sentencing range for the conspiracy conviction of a Criminal-History-

Category-II offender like Jefferson would be 41–51 months, rather than the 21–27-month range

envisioned by the plea agreement. Nevertheless, after hearing argument from the parties and the

allocution of the defendant, the district court varied downward in imposing a sentence for the

conspiracy conviction of time served, which the district court calculated to equate to a sentence of

12 months on that count of the indictment—a sentence below even the 21–27-month range

envisioned in the plea agreement. The district court also imposed “[f]or Count 13, . . . the



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No. 18-3971, United States v. Jefferson


consecutive term of 60 months,” as well as concurrent terms of supervised release of three and five

years for the two offenses. Then, prior to adjourning the hearing, the district judge explained to

Jefferson:

       Your written plea agreement waived many of your appellate rights, but it did not
       waive all of them. If you do believe you have a theory you’d like to present to an
       appellate court regarding any part of the proceedings, the withdrawal of motions—
       I have to tell you, while I hadn’t had an opportunity to thoroughly review the motion
       to suppress, the other motion, the one that attacked the search, based on the position
       I held then, based on what I read, not likely to be well taken, but nonetheless, if you
       think you have a theory to appeal any part of these proceedings, you only have 14
       days to ask the appellate court to give you a schedule, a date by which you need to
       file a brief to explain the theory, and then the government can respond.

(Emphases added.)

                                          DISCUSSION

       Ordinarily, a waiver of appellate rights in a plea agreement binds a defendant to that waiver

as long as the plea itself was entered knowingly and voluntarily. United States v. Toth, 668 F.3d

374, 378 (6th Cir. 2012). Because the district court found that Jefferson indeed did enter into his

plea agreement—including its appellate-waiver provision—knowingly and voluntarily, the

government has filed a motion with this court to dismiss this appeal because the issues raised on

appeal by the defendant do not fall within the limited exceptions to the waiver of appeal rights.

       We have directed government lawyers in such circumstances to move for dismissal of

appeals filed in contravention to the terms of waiver provisions in plea agreements, in part to save

time and resources on appeal. See, e.g., United States v. McGilvery, 403 F.3d 361, 363 (6th Cir.

2005). Where, however, a defendant challenges the validity of the waiver itself, the government

may not rely solely upon the waiver language in the plea agreement to dispose of the appeal. See

In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). Of course, when the transcript of a plea hearing

establishes that a defendant’s plea was knowing and voluntary and that the district court complied

with the strict requirements of Rule 11(b) of the Federal Rules of Criminal Procedure, a mere
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No. 18-3971, United States v. Jefferson


assertion on appeal that the defendant did not waive appellate rights knowingly and voluntarily

will not defeat a motion to dismiss the appeal. Here, however, Jefferson points to comments made

on the record by the magistrate judge and by the district judge that call into question his

understanding of the limits of his appellate rights. Although the plea agreement itself lists

explicitly only four avenues for appeal—none of which encompass the issues Jefferson seeks to

present to us—the magistrate judge did inform the defendant that, in addition to the circumstances

enumerated in the agreement, Jefferson also could present to the appellate court a theory that the

waiver provision itself is unenforceable. Furthermore, the district court instructed Jefferson at the

sentencing hearing that he could present to an appellate court any theory “regarding any part of

the proceedings.” (Emphasis added.)

       If a defendant “misunderstands any of [the] consequences [of an appellate waiver], that

undermines the knowingness of the appellate waiver” itself. United States v. Ataya, 869 F.3d 401,

402 (6th Cir. 2017) (order). Because we believe it is at least possible that the remarks by the

magistrate judge and the district judge confused Jefferson about the extent of his appellate rights,

out of an abundance of caution and in an effort to forestall future litigation on this issue, we deny

the government’s motion to dismiss this appeal. We thus undertake a brief examination of the

issues raised by Jefferson on appeal.

       In his first appellate challenge, Jefferson argues that his guilty plea cannot be considered

knowing and voluntary—and therefore valid—because the district court failed to comply with the

provisions of Federal Rule of Criminal Procedure 11(b)(3) by ensuring “that there is a factual basis

for the plea.” Specifically, Jefferson contends that he cannot be guilty of possessing a firearm in

furtherance of a drug-trafficking crime because there is no proof that the weapon recovered from

a safe in the defendant’s residence belonged to him or that the weapon was possessed to further



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No. 18-3971, United States v. Jefferson


drug activities. At his plea hearing, however, Jefferson agreed with the statement of the prosecutor

that the defendant “knowingly possessed firearms to protect, in furtherance of his drug activities,

to wit this conspiracy to possess [with] intent to distribute and to distribute cocaine.” He also

affirmed that he was “pleading guilty . . . to the offense because [he is], in fact, guilty of the

offenses charged in Count 1 and 13 of the indictment.”

         Even had he not admitted his guilt of the firearms charge during court proceedings, we

would find that the government established a sufficient factual basis for that conviction. Despite

the fact that Jefferson argues that he could not be found guilty of possessing a firearm in

furtherance of drug-trafficking activity because there was insufficient evidence that he had control

over the weapon, he had at least constructive possession of the firearm that police found in a safe

in his residence. See United States v. Volkman, 797 F.3d 377, 391–92 (6th Cir. 2015). Indeed,

police also found in the safe “ammunition, baggies of cocaine, paperwork belonging to the

defendant, and 16 full, unopened bottles of Promethazine with Codeine cough syrup which were

pharmaceutical in origin.” Furthermore, as we held in Volkman, “[w]hen a weapon is found in a

locked safe placed alongside contraband, there is sufficient evidence for a jury to determine that a

defendant is in possession of a firearm in furtherance of a drug-trafficking crime.” Id. at 391.

Thus, there is no merit to Jefferson’s allegation that the government failed to establish a factual

basis for his guilty plea to the charge of possessing a firearm in furtherance of a drug-trafficking

crime.

         Similarly, we find no merit to Jefferson’s other allegation of error. In that claim, he

contends that the statutory mandatory-minimum five-year sentence for possessing a firearm in

furtherance of a drug-trafficking offense, see 18 U.S.C. § 924(c)(1)(A)(i), is unconstitutional

because it is grossly disproportionate to the offense he committed. Jefferson recognizes that we



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No. 18-3971, United States v. Jefferson


have held consistently that “mandatory minimum sentences, which limit a sentencing court’s

discretion with regard to [18 U.S.C.] § 3553(a) factors, are constitutional.” United States v.

Washington, 584 F.3d 693, 700 (6th Cir. 2009); see also United States v. Cecil, 615 F.3d 679, 695–

96 (6th Cir. 2010). He seeks to raise this issue on appeal, however, “to preserve it for discretionary

review or in the event of a change in the law.” Because we cannot overrule the holding of a prior,

published Sixth Circuit decision unless “an inconsistent decision of the United States Supreme

Court requires modification of that decision or this Court sitting en banc overrules the prior

decision,” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), we

conclude that Jefferson cannot establish constitutional infirmities in his mandatory-minimum five-

year sentence.

                                          CONCLUSION

       In light of the unusual circumstances presented in this case, we DENY the government’s

motion to dismiss this appeal. Nevertheless, we find no merit to the issues raised by the defendant

and AFFIRM the judgment of the district court.




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