                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                    File Name: 19a0116n.06

                                      Nos. 17-5938/17-5939


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
 UNITED STATES OF AMERICA,                      )                                Mar 13, 2019
                                                )                            DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                     )
                                                )
 v.                                             )     ON APPEAL FROM THE UNITED
                                                )     STATES DISTRICT COURT FOR THE
 TREMAINE WILBOURN,                             )     WESTERN DISTRICT OF TENNESSEE
                                                )
        Defendant-Appellant.                    )


BEFORE:        NORRIS, DAUGHTREY, and LARSEN, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Tremaine Wilbourn pleaded

guilty to numerous offenses pursuant to a plea agreement in which he also waived his right to

appeal his convictions and sentence. Wilbourn now argues, however, that his plea was not

knowing and voluntary and, therefore, should be set aside. He also contends that he received

ineffective assistance of counsel in deciding whether to enter into that plea agreement. The United

States, through the office of the United States Attorney, moves for dismissal of the appeal in

accordance with the appellate-waiver provision to which Wilbourn agreed. For the reasons set

forth below, we grant the government’s motion and dismiss the appeal.

                     FACTUAL AND PROCEDURAL BACKGROUND

       In 2006, Wilbourn pleaded guilty to armed bank robbery and to carrying a firearm during

and in relation to a crime of violence. The district court sentenced Wilbourn to 121 months in

prison and three years on supervised release. After his release from incarceration, Wilbourn began
Nos. 17-5938/17-5939, United States v. Wilbourn


serving his supervised-release term on July 1, 2014. Only 13 months later, however, Wilbourn

was arrested again and eventually was indicted for carjacking; using, carrying, and brandishing a

firearm during and in relation to a crime of violence; and being a felon in possession of ammunition

(District Court Case No. 2:15-cr-20293). At the request of Wilbourn’s probation officer, the

district court also issued a warrant for Wilbourn to appear for a revocation of his supervised release

because of the defendant’s commission of federal crimes and his unauthorized use of marijuana

(District Court Case No. 2:05-cr-20240).

       Facing maximum sentences of life in prison plus 25 years for the indicted offenses, and

additional prison time for the violation of supervised release, Wilbourn entered into a favorable

plea agreement with the government. In their entirety, the substantive terms of that agreement

provided:

              The United States and the defendant, represented by counsel and pursuant
       to Rule 11(c)(1)(C), Federal Rules of Criminal Procedure, hereby enter into the
       following plea agreement:
               1. The defendant will plead guilty to the three-count indictment charging
       him with carjacking in violation of 18 U.S.C. § 2119 (Count 1), using a firearm
       during a crime of violence in violation of 18 U.S.C. § 924(c) (Count 2), and being
       a felon in possession of ammunition in violation of 18 U.S.C. § 922(g) (Count 3).
              2. Pursuant to Rule 11(c)(1)(C), F. R. Crim. P., the parties agree that the
       defendant shall be sentenced to a total term of imprisonment of twenty-five years
       and two days.
              3. The defendant will also plead guilty to the supervised release violation
       pending against him in Criminal Case No. 05-CR-20240. Pursuant to Rule
       11(c)(1)(C), F. R. Crim. P., the parties agree that the defendant shall not be
       sentenced to more than 30 months on this violation, which is the high end of the
       sentencing guideline range for this violation. The parties further agree that the
       determination of whether the sentence imposed for this violation is concurrent or
       consecutive to the sentence in this case is left to the discretion of the Court.
               4. The defendant agrees that he waives any right to appeal his conviction
       or sentence on both this case and on his supervised release violation.
                  5. The parties agree that this agreement is the entire agreement between the
       parties.


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       Despite the plea agreement’s language indicating that the district court had the discretion

to run Wilbourn’s sentence for the supervised-release violation concurrently or consecutively with

his sentences for the indicted crimes, 18 U.S.C. § 924(c)(1)(D)(ii) unambiguously states that “no

term of imprisonment imposed on a person under this subsection shall run concurrently with any

other term of imprisonment imposed on the person.” (Emphasis added.) Thus, the district court

was required to run the 30-month sentence for the violation of supervised release consecutively

with the 25-year-and-two-day sentence already imposed in District Court Case No. 2:15-cr-20293,

regardless of any language to the contrary in the plea agreement itself.

       Unfortunately, the district court did not clear up the parties’ misconceptions. During the

change-of-plea hearing, when referencing the possible sentence for the supervised-release

violation, the district court explained to Wilbourn, “And in this agreement, you and the government

are leaving it to me to decide whether that is part of the 25 years and two days or whether it goes

on top of the 25 years and two days.” Furthermore, at the sentencing hearing, the district court

again noted that the prosecution and the defense “have not agreed as to whether [the 30-month

sentence for violating the terms of supervised release is to be] consecutive or concurrent,” and

invited counsel to argue for their respective positions on the issue.

       After hearing from the prosecution and from defense counsel, the district court discussed

the relevant sentencing factors set forth in 18 U.S.C. § 3553(a). The district court then ordered

that the sentence for the violations of the terms of supervised release run consecutively with the

25-year-two-day sentence because of Wilbourn’s “need for additional time to understand and deal

with the issues that come from the failure to follow authority because that goes directly to the

supervised release violation, to the issues related to not following the things that you are told to

do.”



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Nos. 17-5938/17-5939, United States v. Wilbourn


       Wilbourn now seeks to appeal from that determination. In doing so, he argues that his plea

agreement should be set aside because he did not enter it knowingly and voluntarily. He claims

that he understandably was under the impression that the district court might order the 30-month

sentence to be served concurrently with the longer prison sentence when, in reality, the district

court was forbidden by statute to do so. Wilbourn also challenges the legitimacy of his guilty plea

on the basis that his attorney provided ineffective assistance of counsel by not recognizing and

explaining the limits on the district court’s sentencing discretion.

                                           DISCUSSION

       A criminal defendant may waive any constitutional right—even his right to appeal his

sentence—in a valid plea agreement. See United States v. Fleming, 239 F.3d 761, 763–64 (6th

Cir. 2001); United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003). For such a plea agreement

to be valid for constitutional purposes, however, the defendant must have entered into it knowingly

and voluntarily. Smith, 344 F.3d at 483. Moreover, “[a] guilty plea can be involuntary as a result

of the ineffective assistance of counsel.” United States v. Gardner, 417 F.3d 541, 545 (6th Cir.

2005) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Here, in the face of the government’s

request that we dismiss Wilbourn’s appeal that he ostensibly waived in his plea agreement,

Wilbourn insists that the plea could not have been entered knowingly and voluntarily because he

had been misinformed by the district court and by his counsel about the possibility that the district

court would order his 30-month sentence to be served concurrently with the longer sentence he

received for the offenses charged in District Court Case No. 2:15-cr-20293.

       Ordinarily, “[w]e apply de novo review to the issue of whether a criminal defendant has

waived appellate rights in a valid plea agreement.” United States v. Detloff, 794 F.3d 588, 592

(6th Cir. 2015). Where, as here, however, the defendant failed to raise his objections before the



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Nos. 17-5938/17-5939, United States v. Wilbourn


district court, we review for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). To satisfy

the plain-error standard, Wilbourn must establish “(1) error (2) that was obvious or clear, (3) that

affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public

reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008)

(en banc) (citation and internal quotation marks omitted).

Knowing and Voluntary Nature of Guilty Plea

        “For an appellate waiver to be knowing and voluntary, the defendant . . . must have entered

into the plea agreement as a whole knowingly and voluntarily.” United States v. Ataya, 869 F.3d

401, 402 (6th Cir. 2017) (Ataya I). Wilbourn insists that his plea to the supervised-release violation

was not made with full knowledge because the plea agreement, the prosecution, and the district

court all specified that the district court could determine whether that sentence would be served

concurrently or consecutively with the lengthier sentence imposed upon him for the indicted

offenses. The parties agree that such an intimation was wrong in light of the unambiguous mandate

of 18 U.S.C. § 924(c)(1)(D)(ii). That error, however, did not render Wilbourn’s plea unknowing

or involuntary, nor did it affect his substantial rights or the fairness, integrity, or public reputation

of the proceedings.

        To the extent Wilbourn argues that he did not receive the benefit of his bargain—that he

did not receive a chance at concurrent sentencing—we see no error affecting his substantial rights

because the district court still undertook an evaluation of the propriety of concurrent sentencing

regardless of the mandates of § 924(c)(1)(D)(ii). As we recognized in United States v. Ataya, 884

F.3d 318, 323 (6th Cir. 2018) (Ataya II), “The third prong—that the error affected the defendant’s

substantial rights—‘in most cases . . . means that the error must have been prejudicial: It must




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Nos. 17-5938/17-5939, United States v. Wilbourn


have affected the outcome of the district court proceedings.’” (Quoting Puckett v. United States,

556 U.S. 129, 135 (2009), and United States v. Olano, 507 U.S. 725, 734 (1993)).

       Here, the district court’s error in misapprehending the mandatory nature of the consecutive-

sentencing provision of § 924(c)(1)(D)(ii) was ameliorated and rendered harmless by the district

court’s consideration of the propriety of consecutive versus concurrent sentencing. Indeed,

Wilbourn actually received the benefit mistakenly bestowed by the plea agreement. Nevertheless,

the defendant’s history, the nature and seriousness of the offense, the need to promote respect for

the law, the need to protect the public, and “a significant need for deterrence” led the district court

to conclude that concurrent sentencing for the violations of the terms of supervised release would

not be appropriate. The agreement should not have indicated that the district court had discretion

in determining whether concurrent or consecutive sentences were appropriate, but Wilbourn

received the benefit of that provision and thus cannot show harm. See Puckett, 556 U.S. at 141

(recognizing that a defendant cannot show prejudice when “he obtained the benefits contemplated

by the deal”).

       To the extent Wilbourn argues that the concurrent sentencing provision in the plea

agreement rendered his plea unknowing or involuntary and that the plea agreement should,

therefore, be set aside, he has not established entitlement to relief. Wilbourn’s claim that he

“possibl[y], if not likely” would have rejected the plea deal had he known that his sentence for

violation of the terms of supervised release had to run consecutively with his other sentence is both

self-serving and unbelievable. In exchange for his guilty plea, Wilbourn received an extremely

lenient, reduced sentence. In fact, as expressed by the prosecution at the defendant’s sentencing

hearing, “If he was not pleading guilty, we would be seeking the maximum punishment,”—

incarceration for life plus 25 years for the offenses in the indictment alone. Given the strength of



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Nos. 17-5938/17-5939, United States v. Wilbourn


the evidence arrayed against Wilbourn, it is difficult to believe that the defendant willingly would

have risked life in prison rather than agreeing to a sentence that amounted to 27 years, six months,

and two days of incarceration. In any event, to show that he was entitled to have his plea set aside

because it was unknowing or involuntary, Wilbourn would have to “show a reasonable probability

that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez,

542 U.S. 74, 76 (2004) (emphasis added). Wilbourn does not even attempt to make that showing

in his briefing before this court.

Ineffective Assistance of Counsel Claim

        Wilbourn also argues that his counsel was constitutionally ineffective in failing to advise

him that the terms of the plea agreement did not comport with the mandatory language of the

sentencing provisions of 18 U.S.C. § 924(c)(1)(D)(ii). Ordinarily, such claims are resolved in

proceedings pursuant to 28 U.S.C. § 2255 after a record can be compiled memorializing the

testimony of the defendant, his attorney, and any other relevant party regarding the claim. See,

e.g., Gardner, 417 F.3d at 545. Wilbourn insists, however, that the record in this case is sufficient

to establish that he was denied the effective assistance of counsel and that we should resolve this

issue on his direct appeal. Despite Wilbourn’s invitation to address this issue prematurely, we

believe the better course is to allow Wilbourn to argue this issue in the context of a § 2255 motion.

                                         CONCLUSION

        For the reasons discussed above, Wilbourn has not established that his plea should be set

aside. Because the plea remains in force, Wilbourn is bound by the appellate-waiver provision

included in the agreement. We thus DISMISS Wilbourn’s attempted appeal.




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