                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0233n.06

                                            No. 10-1705                                      FILED
                                                                                        Feb 28, 2012
                           UNITED STATES COURT OF APPEALS
                                                                                  LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                              )
                                                       )
        Plaintiff-Appellee,                            )
                                                       )       ON APPEAL FROM THE
v.                                                     )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE EASTERN
TONY JAMEL LEE, aka Bop,                               )       DISTRICT OF MICHIGAN
                                                       )
        Defendant-Appellant.                           )
                                                       )
                                                       )



        BEFORE: SILER, ROGERS, and WHITE, Circuit Judges.


        PER CURIAM. Tony Jamel Lee appeals his conviction and sentence. The government has

moved to dismiss Lee’s appeal based on an appellate-waiver provision in his plea agreement. Lee

has moved to unseal certain documents filed in this court.

        Pursuant to a plea agreement, Lee pleaded guilty to conspiracy to distribute controlled

substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court determined that Lee’s

total offense level was 33 and that his criminal history category was IV, resulting in a guideline range

of imprisonment of 188 to 235 months. The court sentenced Lee to 168 months in prison. Lee

appealed, arguing that the district court made several errors in determining his sentence and that he

was denied the right to a public proceeding.

        The government moved to dismiss Lee’s appeal based on an appellate-waiver provision in

his plea agreement. We review de novo “whether a defendant waived his right to appeal his sentence

in a valid plea agreement.” United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005). “It is
No. 10-1705
United States of America v. Lee

well settled that a defendant in a criminal case may waive any right, even a constitutional right, by

means of a plea agreement.” Id. (internal quotation marks and citation omitted).

       Lee’s plea agreement provided that he could withdraw his guilty plea only “if the Court

decides to impose a sentence higher than the maximum allowed by Part 3 [of the agreement].” The

plea agreement likewise provided that Lee waived any right to appeal his conviction or sentence

unless his sentence “exceed[ed] the maximum allowed by Part 3 of this agreement.” The “maximum

allowed” sentence in Part 3 is “the top of the sentencing guideline range as determined by Paragraph

2B.” The only guideline range identified in Paragraph 2B is the government’s non-binding

recommendation of 168 to 210 months, which was based on calculations set forth on several

worksheets attached to the plea agreement. Those worksheets reflected that Lee’s total offense level

was 33 and that his criminal history category was III. Paragraph 2B also stated that, if the district

court determined that Lee’s criminal history category was higher than the level reflected on the

worksheets and if that determination resulted in a higher guideline range than was recommended,

the higher range would become the recommended range.

       At the guilty plea hearing, Lee acknowledged that, under the terms of the plea agreement, he

could not withdraw his plea if the district court accepted the government’s recommended sentencing

range and imposed a sentence within that range. Lee further acknowledged that he was waiving his

right to appeal his conviction and sentence “as long as that sentence is not above the high end of the

guideline range.” At the sentencing hearing, the district court determined that Lee’s criminal history

category was IV, rather than III as recommended by the government, resulting in a guideline range

of 188 to 235 months. The court’s adoption of the higher sentencing range made it the relevant




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No. 10-1705
United States of America v. Lee

range for purposes of Paragraph 2B. See United States v. Keller, 665 F.3d 711, No. 10-1901, 2011

WL 6057913, at *2-3 (6th Cir. Dec. 7, 2011).

       Because Lee’s sentence of 168 months did not exceed the guideline range provided by the

plea agreement, the condition of his appellate-waiver provision was satisfied, and he is bound by it.

See id. at *1, *4-5. Further, despite Lee’s arguments to the contrary, his guilty plea was knowing

and voluntary according to the criteria set out in United States v. Dixon, 479 F.3d 431, 434 (6th Cir.

2007), and enforcing his appellate-waiver provision will not result in a miscarriage of justice or

undermine the proper functioning of the federal courts.

       Accordingly, we grant the government’s motion to dismiss Lee’s appeal and deny as moot

Lee’s motion to unseal documents.




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No. 10-1705
United States of America v. Lee

HELENE N. WHITE, Circuit Judge, concurring.

        I cannot agree that Lee unambiguously waived the right to appeal his sentence. Pursuant to

Paragraph 2B, Lee’s plea agreement states that he cannot “withdraw his guilty plea” if the district

court disagrees with his arguments as to drug quantity. Likewise, at the plea hearing, the district

court asked Lee, “if I decide that the range is 168 to 210, and I decide that the sentence should be 210

or below, under those circumstances after today’s date, you could not withdraw your plea, you

understand?” The plea agreement is ambiguous at best. See, e.g., United States v. Bowman, 634

F.3d 357, 360 (noting that ambiguities in a plea agreement must be construed against the

government).

        Nevertheless, after reviewing Lee’s objections to his sentence, I join in the affirmance

because I find no sentencing error.




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