                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0016n.06

                                           No. 14-2461


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED
                                                                                   Jan 09, 2017
UNITED STATES OF AMERICA,                                                      DEBORAH S. HUNT, Clerk

       Plaintiff-Appellee,
v.
                                                      ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
LAWRENCE NATHAN WILSON,
                                                      WESTERN DISTRICT OF MICHIGAN
       Defendant-Appellant.




BEFORE:        CLAY, KETHLEDGE, and DONALD, Circuit Judges.

       CLAY, Circuit Judge. Defendant Lawrence Nathan Wilson entered into a plea

agreement with the government agreeing to plead guilty to possession with intent to distribute

twenty-eight grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a) and

841(b)(1)(B)(iii). Defendant now challenges his sentence, contending, among other things, that

the district judge failed to properly consider the 18 U.S.C. § 3553(a) factors in imposing the term

of his sentence and the conditions of supervised release.

       For the reasons set forth below, we hold that Defendant’s appeal is foreclosed by the

scope of his appellate-waiver; accordingly, we AFFIRM Defendant’s sentence.

                                        BACKGROUND
                                      Factual Background

       Defendant was indicted in the United States District Court for the Western District of

Michigan on one count each of possession with intent to distribute the following drugs: crack
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cocaine, powder cocaine, and marijuana. On May 29, 2014 Defendant and the government

entered into a plea agreement whereby Defendant pled guilty to Count One of the indictment—

namely, that he had possessed 28 grams or more of crack cocaine with the intent to distribute, in

violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii). The parties entered an amended plea

agreement on June 9, 2014, which, like the original plea agreement, contained a waiver of

Defendant’s appellate rights.1 The waiver contained an exception affording Defendant the right

to appeal any sentence that “exceeds the statutory maximum or is based upon an unconstitutional

factor, such as race, religion, national origin, or gender.”

         On June 11, 2014, a change of plea hearing was held before a magistrate judge. After

discussions with the government about the plea agreement, the magistrate judge explained to

Defendant the maximum penalties both if he pleaded guilty or proceeded to trial. The magistrate

judge then explained the Sentencing Guidelines at length and explicitly informed Defendant it

was impossible to pinpoint what his advisory Guideline range would be. Defendant assured the

court that he had discussed the agreement with his attorney and understood it. As part of the

hearing, the magistrate judge permitted the government to summarize the plea agreement, which

the government did by practically reading the agreement verbatim. Following this exchange, the

magistrate judge personally explained the agreement to Defendant, including the terms of the

appellate-waiver.

         In describing the appellate-waiver, the magistrate judge informed Defendant that he

would retain certain rights to appeal. These rights were triggered in the event of a constitutional

violation or if the court “were to sentence [Defendant] to something more than what the law

allowed.” Acknowledging that he understood, Defendant agreed to waive his appellate rights.

         1
          At the change of plea hearing, the magistrate judge insisted that the parties add and initial a clarification
to paragraph 3 of the plea agreement, which is not relevant to the plea waiver. All future references to the plea
agreement are to the initialed version.

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Neither Defendant’s attorney nor the government objected to the magistrate judge’s summation

of the plea waiver.

       At the sentencing hearing, the district court reviewed the presentence report. In

so doing, the court undertook a review of the § 3553(a) factors, explicitly noting the long record

of Defendant’s convictions and arrests. The court found that the majority of offenses were drug

related and demonstrated “a complete lack of respect for the law” or an “understanding of the

seriousness of the crime.” It could find no evidence of entrepreneurial activity. Accordingly, the

court decided that to guarantee “an adequate deterrence to such criminal conduct and a protection

of the public,” a term of incarceration was necessary. In light of these factors, the court

sentenced Defendant to a term of 192 months in custody, followed by a five-year term of

supervised release. In so doing, the court mentioned the need to rehabilitate Defendant and for

him to receive treatment. The court then imposed the following special conditions of supervised

release: (1) Defendant must get regular testing and treatment for substance abuse; (2) Defendant

must maintain legitimate full-time employment or otherwise engage in twenty hours per week of

community service; (3) Defendant must participate in cognitive behavioral therapy;

(4) Defendant shall not associate with felons or anyone using or possessing controlled

substances; and (5) Defendant shall have a curfew of 11:00 p.m. unless excused in advance by

his probation officer.

                                      Procedural History

       The district court entered judgment against Defendant on October 27, 2014. On

November 12, 2014, Defendant filed a pro se notice of appeal. We dismissed the appeal for want

of prosecution, but later reinstated the appeal. On February 11, 2016, the government moved to

dismiss Defendant’s appeal as barred by the appellate-waiver in his plea agreement. On April 7,



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2016, a motions panel of this Court entered an order referring Defendant’s motion to dismiss to

the merits panel. In so doing, the motions panel rejected three of Defendant’s four arguments as

to why his appellate-waiver was invalid. However, the motions panel did find merit in

Defendant’s contention that the district court created ambiguity during his plea hearing by

expanding the scope of his appellate-waiver. Accordingly, we now consider Defendant’s

arguments.

                                          DISCUSSION

      I.     ENFORCEABILITY OF DEFENDANT’S APPELLATE-WAIVER

       1. Standard of Review

       A defendant may waive any right, including a constitutional right, in a plea agreement if

the waiver is knowingly and voluntarily made. United States v. Toth, 668 F.3d 374, 377–78 (6th

Cir. 2012). This includes the right to appeal one’s sentence. See United States v. Wilson,

438 F.3d 672, 674 (6th Cir. 2006). We review de novo 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). And a defendant may only “challenge a waiver of appeal rights ‘on the

grounds that it was not knowing and voluntary, was not taken in compliance with Fed. R. Crim.

P. 11, or was the product of ineffective assistance of counsel.’” Detloff, 794 F.3d at 592 (quoting

United States v. Atkinson, 354 F. App’x 250, 252 (6th Cir. 2009)). But before a district court

may accept a defendant’s guilty plea, “the court must inform the defendant of, and determine that

the defendant understands . . . the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N). If the defendant fails

to object before the district court, violations of Rule 11 are reviewed for plain error. United

States v. Melvin, 557 F. App’x 390, 393 (6th Cir. 2013) (citing United States v. Murdock,



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398 F.3d 491, 496 (6th Cir. 2005)). On plain error review, Defendant bears the burden of proof

and must demonstrate: (1) an error (2) that is plain and (3) that affects substantial rights. Id. An

appellate court then may exercise its discretion to notice a forfeited error only if (4) “the error

seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.

       2. Analysis

       Defendant provides four reasons why he did not waive his appellate rights in the plea

agreement. First, Defendant argues he could not knowingly and voluntarily waive his appellate

rights in a plea agreement that failed to include a specified guidelines range. Second, Defendant

contends that the terms of his appellate-waiver were too generic to preclude appellate review.

Third, Defendant states that the terms of the plea agreement were too ambiguous to be enforced.

And finally, Defendant claims that during his colloquy with the magistrate judge, the lower court

introduced ambiguity into the scope of the appellate-waiver by inaccurately summarizing the

conditions under which Defendant could appeal his sentence. We consider each in turn.

              i.   Failure to include a recommended sentencing guideline range

       Defendant first objects to the plea agreement on the grounds that the agreement failed to

include a recommended sentencing range. Defendant cites United States v. Martinez-Rios,

143 F.3d 662 (2d Cir. 1998) to show that his plea agreement is “an usual form of waiver” which

implicates the “knowing and voluntary inquiry to an even greater extent than does the standard

plea.” Id. at 669. Accordingly, he argues that his waiver of appellate rights was neither knowing

nor voluntary.

       We are not persuaded.         Martinez-Rios predated the adoption of Rule 11(b)(1)(N);

therefore, the court did not engage in a colloquy with the defendant to inform him of his rights.

Defendant, on the other hand, did engage in an extensive colloquy with the magistrate judge,



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who informed him that it was not possible to determine what type of sentence would be

recommended under the guidelines. We have previously held under such circumstances that plea

agreements need not include a specific recommended guidelines range in order to be enforceable.

See e.g., United States v. Martinez, 430 F. App’x 406, 410 (6th Cir. 2011); United States v.

Thomas, 605 F.3d 300, 314 (6th Cir. 2010); United States v. Luebbert, 411 F.3d 602, 603–04

(6th Cir. 2005). Consequently, we find that Defendant knowingly and voluntarily waived his

right to appeal.

             ii.   The language in the plea agreement does not operate as a waiver

       Relying exclusively on United States v. Dellheim, 187 F. App’x 573 (6th Cir. 2006),

Defendant next argues that the language of his appeal waiver does not actually function as a

waiver of appeal. In Dellheim, we held that a waiver of a right to appeal any “lawful sentence”

requires this Court to determine whether the sentence complies with law and, therefore, does not

really function as an appeal waiver. Id. at 576. Defendant points to the following language in

his appellate-waiver: “the defendant knowingly waives the right to appeal . . . the manner in

which the sentence was determined on the grounds set forth in 18 U.S.C. § 3742,” and claims

that it also requires us to parse his sentence and determine whether it is lawful. (R. 31, Am. Plea.

Agr., at Page ID 74). But unlike the language in Dellheim, Defendant’s plea language has been

enforced repeatedly by this court. See, e.g., United States v. Moon, 808 F.3d 1085, 1088 (6th Cir.

2015); United States v. Rothrock, 617 F. App’x 511, 513 (6th Cir. 2015). Defendant neglects to

explain to this Court why the language used in his plea, which is dissimilar to the language cited

in Dellheim, creates the same nugatory effect. We therefore find that the language in Defendant’s

plea agreement validly operates as a waiver of appellate rights.




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            iii.   The plea agreement is ambiguous

       Defendant further argues, citing to United States v. Whitelow, 596 F. App’x 382 (6th Cir.

2015), that the language of the plea agreement is ambiguous because the agreement does not

include any mention of a sentencing enhancement. But we have never held that an agreement

automatically becomes ambiguous just because it fails to refer to a possible sentencing

enhancement. To the extent Defendant suggests otherwise, he misreads Whitelow. The ambiguity

in Whitelow was informed by a familiar principle of contract interpretation: when one or more

things of a class are expressly mentioned, others of the same class are excluded. Because the plea

agreement in Whitelow referenced only one sentencing enhancement, we recognized that a

plausible reading of the agreement dictated that the plea agreement intended to exclude any

additional sentencing enhancements in the future. Contrary to Defendant’s argument, we have

approved of precisely the same language now included in Defendant’s plea agreement, holding it

to be “in no way ambiguous.” United States v. Lash, 584 F. App’x 285, 286 (6th Cir. 2014).

            iv.    The district court enlarged the scope of Defendant’s appellate-waiver

       Lastly, Defendant argues that the magistrate judge introduced ambiguity into the

appellate-waiver by inaccurately describing the scope of the clause. Relying upon United States

v. Melvin, 557 F. App’x 390 (6th Cir. 2013), Defendant contends that the magistrate judge’s

statement concerning his ability to appeal if his sentence was “something more than what the law

allowed” considerably enlarged the grounds upon which his appeal could be brought.

       We are not persuaded by Defendant’s argument. In Melvin, the plea waiver only

contemplated an appeal for ineffective assistance of counsel or prosecutorial misconduct, but the

lower court informed the defendant of an additional right to appeal in the event of a “change in

the law.” While this might appear to “create ambiguity where none exists in the plain text of the



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agreement,” id. at 395 (quoting United States v. Saferstein, 673 F.3d 237, 242 (3d. Cir. 2012), it

is clear that Defendant’s case is inapposite. The terms of Defendant’s plea agreement contained

language that was substantially similar to the recitation undertaken by the lower court. In

context, the phrase “more than what the law allowed,” stated by the magistrate judge, and

“statutory maximum,” written in the plea agreement, are substantively one and the same.

       Additionally, a rule 11(b)(1)(N) violation hinders a defendant’s rights only if the plea

colloquy includes “no functional substitute” for the Rule 11 safeguard. Murdock, 398 F.3d at

497. Our decision in Melvin partially rested upon the prosecutor’s failure to object and thereby

clarify any ambiguity between the lower court’s statement and the terms of the defendant’s

agreement. Otherwise, we have held that “where the defendant states that he had reviewed the

plea agreement with his attorney and that his attorney had explained the agreement, or where the

prosecutor refers to the waiver provision in summarizing the terms of the plea agreement, this

may be sufficient to insure that the waiver was knowing and voluntary.” United States v.

Robinson, 455 F.3d 602, 610 (6th Cir. 2006); see also United States v. Sharp, 442 F.3d 946 (6th

Cir. 2006) (upholding plea where prosecutor summarized appellate-waiver provision, and

defendant stated in court that he had read the plea agreement, that he understood its terms, and

that he had discussed the agreement with his attorney); Wilson, 438 F.3d at 674 (holding that

explanation of the appellate-waiver provision by prosecutor satisfied Rule 11).

       At Defendant’s change of plea hearing, the prosecutor restated the terms of the appeal-

waiver almost word for word in front of Defendant. Defendant confirmed that he had read the

plea agreement, consulted with his attorney, and understood the terms of the waiver provision.

Thus, we reject Defendant’s argument that any misstatement by the lower court introduced

sufficient ambiguity to expand the scope of his appellate-waiver.



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       None of Defendant’s other arguments on appeal, which address alleged sentencing

violations, set forth a violation or potential violation of the appellate-waiver. Therefore, such

arguments are foreclosed.

                                        CONCLUSION

       For the foregoing reasons, we AFFIRM Defendant’s sentence and dismiss his appeal.




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