                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                    File Name: 05a0718n.06

                                    Filed: August 17, 2005

                                          No. 04-5754

                          UNITED STATES COURT OF APPEALS

                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                                  ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
v.                                                          COURT FOR THE EASTERN
                                                            DISTRICT OF KENTUCKY
CHRISTOPHER RICE,

       Defendant-Appellant.

__________________________/

Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; and CLELAND,* District Judge.

       CLELAND, District Judge. Christopher Rice appeals his conviction and sentence for

conspiring with others to knowingly and intentionally possess with intent to distribute, and

distributing, more than 500 grams of a mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1) and 846. Rice pleaded guilty to the

charges pursuant to a Rule 11 agreement. Included in his Rule 11 agreement was a waiver of his

right to appeal the conviction or sentence. Because we find Rice’s appeal waiver was knowing

and voluntary, and was not trumped by a court clerk’s mistaken pro forma announcement of a

right to appeal following his sentencing, we affirm without reviewing the substance of Rice’s



       *
       Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
remaining claims.

                                                 I.

       On June 26, 2003, a federal grand jury sitting in London, Kentucky returned Pikeville

Indictment #03-CR-27, which charged, among other counts, that:

       (1) Defendants Rice, Chad Jensen, Tara Reade, and Fugate Jr. conspired “together
       and with others to knowingly and intentionally possess with intent to distribute,
       and distribute, over 500 grams of a mixture or substance containing a detectable
       amount of methamphetamine, a Schedule II controlled substance, violations of 21
       U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846.

(Pikeville Indictment No. 03-CR-27.)

       On July 2, 2003, Defendant was arraigned on “Count 1” and the three other counts of the

Indictment (6, 7 and 8) in which he was implicated. On February 26, 2004, the district court

held a rearraignment of Defendant, during which Defendant changed his plea to guilty on Count

1 under a Rule 11 plea agreement with the Government. Pursuant to the terms of the agreement,

Defendant would plead guilty to Count 1 and agreed to waive his right to appeal or collaterally

attack his guilty plea, conviction, and sentence, including any order of restitution, in exchange

for the United States’s agreement, among other things, to move the district court to dismiss

Counts 6, 7, and 8, and to recommend his release on his current bond pending future court

appearances if Defendant did not violate the terms of the order setting conditions of release. The

parties also agreed to non-binding proposed sentencing guideline calculations. All terms were

set forth clearly both in writing and orally on the record.1 Immediately after it was proffered, the


       1
          The final paragraph of the plea agreement states that “Defendant and . . . Defendant’s
attorney acknowledge that . . . Defendant understands [the] Agreement, that . . . Defendant’s
attorney has fully explained [the] Agreement to . . . Defendant, and that . . . Defendant’s entry
into [the] Agreement is voluntary.”


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court accepted Defendant’s plea of guilty to Count 1, and the government counsel moved to

dismiss the other counts. More than three months later, on June 10, 2004, when Defendant’s

sentence had been imposed, the district court clerk erroneously informed Defendant that he had

“a right to appeal [his] case to the Sixth Circuit Court of Appeals, which on proper appeal will

review [the] case and determine that there has or has not been an error of law.”

       Defendant now appeals, raising several issues relating to his guilty plea and asserting that

his waiver of his appeal rights was invalid because the district court failed to effectively review

the waiver during the Rule 11 hearing, and because during his sentencing, the district court clerk

stated that he did have the right to appeal.

                                                 II.

       Rice raises four arguments on appeal: (1) The district court failed to elicit a voluntary and

knowing guilty plea because the court did not engage in the requisite colloquy with Defendant

required by Fed. R. Civ. P. 11; (2) The district court failed to properly advise Defendant of his

constitutional rights in violation of his due process rights; (3) Defendant’s waiver of his right to

appeal was not made voluntarily and knowingly, rendering the appeal waiver contained in

Defendant’s plea agreement invalid and unenforceable; and (4) Defendant’s Sixth Amendment

right to counsel was violated when his counsel failed to ensure that Defendant understood the

nature and consequences of the plea agreement and the conspiracy charges to which Defendant

pleaded guilty.

       We first confront the threshold inquiry of whether Defendant has the right to bring an

appeal in light of the appeal waiver contained in his plea agreement.




                                                  3
       “Any right, even a constitutional right, may be surrendered in a plea agreement if that

waiver was made knowingly and voluntarily.” United States v. Ashe, 47 F.3d 770, 775-76 (6th

Cir. 1995); see also United States v. Randolph, 230 F.3d 243, 250 (6th Cir. 2000).

       Defendant argues that “although [his] plea agreement contained a waiver of his right to

appeal, that waiver is not enforceable, since the [d]istrict [c]ourt failed to effectively review the

waiver during the Rule 11 hearing, and, subsequently at sentencing, informed [Defendant] that

he had the right to appeal.”

       During the Rule 11 hearing, the district court established on the record that Defendant

could read and write, that he understood English, that Defendant was not currently taking any

kind of medication, and that he had not taken any drugs or alcohol in the 24 hours prior to the

hearing. The district court also established that Defendant was satisfied with the advice and

representation that he received from his counsel in the case and that he had reviewed all of the

provisions of the plea agreement. The court also explained to Defendant:

       [The Court]: Now in both plea agreements - - and Mr. Jensen, I believe it appears
       at Paragraph 9 of your plea agreement, and Mr. Rice at Paragraph 8 - - both of
       you have waived your right to appeal or to file a separate lawsuit attacking either
       your conviction or guilty plea and any lawful sentence the [c]ourt might impose.
       Do you understand that, Mr. Rice?

       [Defendant Rice]: Yes.

                                                 ***

       [The Court]: However, you have reserved your right to appeal a sentence if this
       [c]ourt should make an error of law in determining the sentence. Do you
       understand that, Mr. Rice?

       [Defendant Rice]: Yes.




                                                  4
       At Defendant’s sentencing, however, the district court, through the court clerk,

informed Defendant:

       [The Clerk]: You are now notified by this [c]ourt that you have a right to appeal
       your case to the [Sixth] Circuit Court of Appeals, which on proper appeal will
       review this case and determine that there has or has not been an error of law. If
       you do not have sufficient funds to pay for the appeal, you have a right to apply
       for leave to appeal in forma pauperis, which means you may appeal without
       paying for it. If you are without the services of any attorney and desire to appeal
       and so request, the Clerk of this [c]ourt shall prepare and file forthwith notice of
       appeal on your behalf. This notice of appeal must be filed within 10 days from
       the date of entry of this judgment. If you do not have sufficient funds to employ
       an attorney, you may request appointment of counsel to prosecute the appeal for
       you.

       [The Court]: . . . [P]lease review the document with your counsel before signing.

       Defendant argues that because this statement by the court clerk is “inconsistent

with the waiver of appellate rights contained in Mr. Rice’s plea agreement,” it would be

“entirely unfair and contrary to public policy to not allow Mr. Rice to bring to [the]

[c]ourt’s attention the . . . error that occurred at his guilty plea hearing and sentencing.”

       Defendant cites United States v. Buchanan, 59 F.3d 914 (9th Cir. 1996), in

support of his position that the district court clerk’s oral statements should control. In

Buchanan, the court held that a defendant’s plea agreement waiver of his right to appeal

his sentence was unenforceable in light of the oral pronouncement from the district court

that defendant did have the right to appeal his sentence. Id. at 917. The Buchanan court

asserted that

       the district court twice stated that Buchanan had a right to appeal his sentence.
       Indeed, Buchanan's answer of ‘Yes, sir’ to the district court's question of whether
       he understood that he had a right to appeal indicates Buchanan's expectation that




                                               5
        he could appeal his sentence and evinces a misunderstanding of the substance of
        his plea agreement.

Id. at 917-18.

        The Buchanan court, noting that the government did not object to the district

court's erroneous statements, id. at 918, concluded that the defendant “could have no

reason but to believe that the court’s advice on the right to appeal was correct.” Id. The

Buchanan court summarized:

                 Litigants need to be able to trust the oral pronouncements of district court
                 judges. Given the district court judge’s clear statements at sentencing, the
                 defendant’s assertion of understanding, and the prosecution’s failure to
                 object, we hold that in these circumstances, the district court’s oral
                 pronouncement controls and the plea agreement waiver is not enforceable.
Id. at 918.

        This Circuit, however, has “expressly decline[d] to adopt the Ninth Circuit’s rule

in [the case]” and instead we chose to “add [our] voice to the chorus of criticism of

[Buchanan].” United States v. Fleming, 239 F.3d 761, 765 (6th Cir. 2001). In Fleming,

we noted that “no other circuit had adopted the rule of Buchanan, but several have

spoken on the issue.” Id. In refusing to adopt Buchanan, we relied on the Fourth Circuit,

which has held that “once an appeal waiver is established to be knowing and intelligent,

the waiver may not be held unenforceable because of a district court’s erroneous

statements at a subsequent proceeding.” Id. (citing United States v. One Male Juvenile,

No. 96-4023, 1997 WL 381955, at * 4 (4th Cir. 1997) (unpublished)). We held that

“even if the district court did recite the language of the Rule 32 notification of the right to

appeal intending to modify the plea agreement to resurrect Fleming’s right to appeal, the

court lacked the power to make such a modification. ‘Nothing in the rules even remotely


                                              6
allows the district court to accept a guilty plea but rewrite the plea agreement, even if the

modified agreement is more favorable to the defendant.’” Id. at 764-65 (quoting United

States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993)). We have stringently enforced the

rule that a court may not participate in the plea agreement process. Id. at 765 (citing

United States v. Barrett, 982 F.2d 193, 195 (6th Cir. 1992)). Effectively rewriting

portions of the plea agreement from the bench (even from the court clerk’s workspace)

would fall squarely into the category of prohibited participation. Id. A sentencing court

“cannot unilaterally restore a right to appeal that has been waived by the defendant

pursuant to a valid plea agreement.” Id. at 762.

         In the instant case, Defendant knowingly and intelligently entered into the plea

agreement long before the erroneous statements were made by the district court clerk,

and he may not so easily avoid the consequences of the “equally binding promises.”

United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir. 1996). Appeals are subject to

dismissal based on waiver of appeal provisions. Fleming, 239 F.3d at 763-64.

                                             III.

         Having determined that Rice waived his right to appeal, we do not reach the

substance of the other aspects of his appeal. We AFFIRM the judgment of the district

court.




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