           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 14a0771n.06

                                          No. 12-6485

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                 Oct 09, 2014
UNITED STATES OF AMERICA,                                )                  DEBORAH S. HUNT, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )        ON APPEAL FROM THE
               v.                                        )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
JUDY L. DINSMORE,                                        )        DISTRICT OF TENNESSEE
                                                         )
       Defendant-Appellant.                              )
                                                         )
                                                         )
                                                         )


BEFORE: MOORE and COOK, Circuit Judges; and STEEH, District Judge.*

       STEEH, District Judge. Despite a waiver in her plea agreement, Defendant Judy Dinsmore

appeals the 30-month sentence imposed following her plea of guilty to embezzling, stealing, and

converting money of the Social Security Administration. Dinsmore’s plea agreement waived her

right to appeal her conviction or sentence, unless the district court imposed “a sentence . . . above

the sentencing guideline range or any applicable mandatory minimum sentence (whichever is

greater) determined by the district court.” The government moves to dismiss the appeal arguing that

the district court sentenced Dinsmore within the Guideline range. Dinsmore argues that the appeal

waiver does not bar her appeal because the district court departed upward pursuant to U.S.S.G.




*
 The Honorable George Caram Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
§ 4A1.3 resulting in a sentence above the Guideline range. Because Dinsmore’s appeal is precluded

by her appeal waiver, we dismiss.

                                                   I.

                                                   A.

          Dinsmore was related by marriage to Debbie Roberts. Roberts was born on October 8, 1908

and died on October 5, 1982. During her lifetime, Roberts lived with Dinsmore and Dinsmore’s

husband at 711 Longbend Road, Rogersville, Tennessee. Roberts received Supplemental Security

Income (SSI) from the Social Security Administration (SSA).

          After Roberts died, the SSA continued mailing her SSI checks to Dinsmore’s home. The

SSA was never notified that Roberts died. From November 1, 1982 until November 1, 2011, the

SSA sent 347 SSI checks to Dinsmore’s home in Roberts’s name, intended for Roberts’s use.

Dinsmore cashed all 347 checks at the Greene Farmers Co-Op in Greeneville, Tennessee. Each time

the SSA mailed a check to Roberts, Dinsmore affixed Roberts’s signature to the back of the check,

drove to Greene Farmers Co-Op, identified herself as Roberts and cashed the check.

          In June of 2011, the Greeneville Social Security Office began an investigation as part of its

Centenarian Project, realizing that Roberts would be 103-years-old if she were still alive. The

investigation uncovered that Roberts was in fact deceased and that Dinsmore was cashing her SSI

checks. Dinsmore admitted to investigating agents that she lived with her daughter in Midway,

Tennessee, but maintained the residence in Rogersville in order to continue to receive Roberts’s SSI

checks.

          On January 10, 2012, the grand jury returned a one-count indictment charging Dinsmore with

knowingly embezzling, stealing and converting to her own use SSI benefits to which she knew she

was not entitled, in violation of 18 U.S.C. § 641. Dinsmore entered into a plea agreement with the

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government. Dinsmore admitted to violating 18 U.S.C. § 641 and stipulated that the amount of loss

was $167,486.00. As part of her plea agreement, Dinsmore agreed to waive any direct appeal of her

conviction or sentence. The appeal waiver states:

       In consideration of the concessions made by the United States in this agreement and
       as a further demonstration of the defendant’s acceptance of responsibility for the
       offense committed, the defendant agrees not to file a direct appeal of the defendant’s
       conviction or sentence except the defendant retains the right to appeal a sentence
       imposed above the sentencing guideline range or any applicable mandatory
       minimum sentence (whichever is greater) determined by the district court.

       A presentence investigation report was prepared by the probation office. The presentence

report provided for a base offense level of 6 and a criminal history category of III.1 Based on the

amount of loss, the offense level was increased by 10 levels. In addition, 3 levels were subtracted

for Dinsmore’s acceptance of responsibility and assistance to authorities, for a total offense level

of 13. The presentence report concluded that Dinsmore’s maximum term of imprisonment under

18 U.S.C. § 641 was 10 years and the advisory Guideline range was 18 to 24 months. Dinsmore and

the government both filed notices stating that there were no objections to the presentence report.

       Prior to sentencing, the government filed a sentencing memorandum asking the district court

to consider a three-level upward departure under U.S.S.G. § 4A1.3 or a variance under 18 U.S.C.

§ 3553(b). In support of the request, the government cited Dinsmore’s conviction for fraud in

October of 2003, during which time she was continuing to cash Roberts’s SSI checks, arising out

of similar conduct as the conduct charged in the indictment. In the previous case, Dinsmore was




1
  While Dinsmore was awaiting sentencing, in July of 2012, she was convicted in state court for
driving under the influence and leaving the scene of an accident. In addition, in October of
2003, Dinsmore pleaded guilty in federal court to making false statements and representations to
the SSA in connection with SSI benefits.

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cashing SSI checks sent to Stella Roberts, another deceased relative. The government argued that

Dinsmore’s criminal history did not adequately represent her past crimes.

       Dinsmore filed a sentencing memorandum seeking a sentence of 18 months. Dinsmore’s

sentencing memorandum did not address the government’s request for a three-level upward

departure or variance.

       At sentencing, the district court determined that the applicable Guideline range for

Dinsmore’s offense was 18 to 24 months, and that the statutory maximum was 10 years. The district

court, however, found that this range did not appropriately represent Dinsmore’s criminal history

and her likelihood of recidivism. The district court explained that Dinsmore committed both a theft

and forgery offense each time she unlawfully cashed a SSI check amounting to over 700 criminal

offenses that were never prosecuted. Moreover, the district court reasoned that Dinsmore’s conduct

during pretrial supervision shows that she is likely to commit another offense. Therefore, the district

court increased the base offense level by two levels, to 15, reaching a new Guideline range of 24 to

30 months.

       After considering the 18 U.S.C. § 3553 factors, the district court sentenced Dinsmore to

30 months’ imprisonment. The district court assessed $167,486.00 in restitution and a three-year

term of supervised release. Dinsmore, through her attorney, objected to the upward departure.

                                                  B.

       Dinsmore appealed to this court challenging her sentence. Dinsmore’s attorney filed a brief

under Anders v. California, 386 U.S. 738 (1967), concluding that her appeal did not present any

meritorious issues because the plea agreement waived any right to directly appeal the district court’s

sentence. Dinsmore’s attorney contemporaneously filed a motion to withdraw as counsel. Finding



                                                  4
the Anders brief inadequate, the court denied the motion to withdraw and directed Dinsmore’s

attorney to submit a merits brief or an adequate Anders brief.

       Subsequently, the government filed a motion to dismiss arguing that the waiver in

Dinsmore’s plea agreement precluded her from filing a direct appeal. A motions panel denied the

motion without prejudice to reconsideration by the merits panel. Dinsmore filed a reply to the

government’s motion arguing that her direct appeal is permitted because the district court sentenced

her above the applicable Guideline range effectively negating the appeal waiver.

                                                  II.

       An appeal waiver in a plea agreement is enforceable if the defendant’s waiver of appellate

rights was done knowingly and voluntarily. United States v. Toth, 668 F.3d 374, 377–78 (6th Cir.

2012). Dinsmore does not challenge that she knowingly and voluntarily waived her appellate rights.

And the motions panel recognized that “[t]he record demonstrates that the district court complied

with the requirements of Rule 11 in accepting the guilty plea.” Where a defendant knowingly and

voluntarily waives her appellate rights, we can entertain challenges only to the validity of the waiver

itself. United States v. Beals, 698 F.3d 248, 255 (6th Cir. 2012). Dinsmore argues that the appeal

waiver in her plea agreement with the government does not bar her direct appeal because the district

court sentenced her above the advisory Guideline range. To determine whether a claim raised on

appeal falls within the scope of an appeal waiver, we apply a de novo review. Toth, 668 F.3d at 378.

       As explained, Dinsmore waived any direct appeal of her conviction or sentence unless the

district court imposed a sentence above the Guideline range or any applicable mandatory minimum

sentence as “determined by the district court.” Dinsmore argues that she is not bound by the appeal

waiver because the district court’s upward departure pursuant to U.S.S.G. § 4A1.3 creates a sentence



                                                  5
that is greater than the advisory Guideline range. Appellant Reply Br. at 3–4. We reject Dinsmore’s

argument.

       Assuming an upward departure pursuant to U.S.S.G. § 4A1.3 results in an above-Guidelines

sentence rather than an adjustment to the appropriate Guidelines range,2 an issue we do not address

in resolving this appeal, Dinsmore’s broad appeal waiver precludes her from challenging the district

court’s determination that the appropriate Guideline range was 24 to 30 months. This result is

dictated by Beals, a case in which multiple defendants pleaded guilty and/or were convicted of

manufacturing and distributing methamphetamine. 698 F.3d at 254. One of the defendants, Pamela

Miller, pleaded guilty but later challenged her sentence despite an appeal waiver in her plea

agreement. Id. at 255. Miller’s plea agreement precluded her from filing a direct appeal of her

conviction or sentence except that she retained “the right to appeal a sentence imposed above the

sentencing guideline range as determined by the district court.” Id. On appeal, Miller argued that

the district court misapplied the Guidelines. We held that Miller was precluded from challenging

the district court’s application of the Guidelines because of the broad appeal waiver in her plea

agreement. Id. We reasoned that the language in Miller’s appeal waiver, when reasonably read,

deferred to the district court’s discretion in calculating the appropriate Guideline range and

permitted a challenge only if Miller’s sentence exceeded the top end of the range as calculated by

the district court in its discretion. Id. Because Miller’s sentence did not exceed the top end of the

range the district court calculated, we held that Miller’s appeal waiver precluded our review. Id.


2
  Compare United States v. Grams, 566 F.3d 683, 686–87 (6th Cir. 2009) (per curiam)
(explaining that a Guidelines “departure” results in the imposition of a sentence outside the
advisory range), with United States v. Smith, 474 F.3d 888, 896 (6th Cir. 2007) (Gibbons, J,
concurring) (reasoning that an upward departure pursuant to U.S.S.G. § 4A1.3 adjusts the
Guidelines range resulting in a new advisory Guideline range), abrogated on other grounds, Gall
v. United States, 552 U.S. 38 (2007).

                                                 6
       In Beals, we cited United States v. Giganti, 405 F. App’x 31 (6th Cir. 2010), a case in which

we held that a broad appeal waiver that waived the right to appeal any sentence “ ‘within or below

the guideline range as determined by the Court at sentencing’ ” precluded “any challenge to the

district court’s Guidelines calculation.” Id. at 256 (emphasis in original). In Giganti, we compared

the waiver provision above to the waiver provision in United States v. McCoy, 508 F.3d 74, 78 (1st

Cir. 2007), which waived the right to appeal any sentence that fell “within the guideline range.”

Although McCoy held that the appeal waiver preserved an appeal challenging an alleged

miscalculation of the Guidelines range, we distinguished the appeal waiver in McCoy from the one

in Giganti:

       The waiver provision at issue in McCoy is very different from the waiver provision
       at issue in Giganti’s case. Giganti has not merely waived the right to appeal a
       sentence within the guidelines, he has waived the right to appeal a sentence “within
       or below the guideline range as determined by the Court at sentencing. . . .” Even the
       McCoy court noted that such a waiver provision could foreclose an appeal on the
       ground that the district court miscalculated the guideline range. McCoy, 508 F.3d
       at 78 n.4. [footnote omitted].

Giganti, 405 F. App’x at 37.

       Here, after applying U.S.S.G. § 4A1.3, the district court determined that the appropriate

Guideline range was 24 to 30 months. Dinsmore was sentenced to 30 months, a sentence that is

within the Guideline range calculated by the district court. Even if the district court incorrectly

reached the Guidelines calculation, Dinsmore’s appeal waiver precludes her from challenging it on

appeal. Beals, 698 F.3d at 256; Giganti, 405 F. App’x at 37. She agreed not to appeal her sentence

if it was within the Guideline range as determined by the district court. The appeal waiver,

therefore, bars her appeal.

       Although this result may be harsh (if in fact the district court erred in its determination that

24 to 30 months was the correct Guidelines range), we “must give effect to the intent of the parties

                                                  7
as expressed by the plain language in the plea agreement.” Beals, 698 F.3d at 256 (citation omitted).

Had Dinsmore wished to preserve her right to appeal the district court’s determination of the

appropriate Guidelines range, she could have bargained for it at the time she entered into a plea

agreement with the government. Id. at 255–56. For example, in United States v. Deanda, 450 F.

App’x 498 (6th Cir. 2011), the defendant’s plea agreement waived the right to appeal a sentence

within or below the advisory Guideline range “except that the Defendant may appeal on grounds,

preserved at sentencing, that the Court incorrectly determined the guideline range.” Id. at 499

(emphasis added). In another case, United States v. Coker, 514 F.3d 562, 573 (6th Cir. 2008), the

defendant agreed to waive the right to appeal unless the court “departed upwards” from the

Guidelines. Dinsmore’s appeal waiver does not contain similar language as that in Deanda or

Coker. The plain language of Dinsmore’s plea agreement precludes her appeal.

                                                III.

       For the reasons explained above, we GRANT the government’s motion to dismiss and

DISMISS Dinsmore’s appeal.




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