                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0521n.06
                             Filed: July 24, 2007

                                            No. 05-6672

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
FIDELITY MURCHISON,                                )   EASTERN DISTRICT OF TENNESSEE
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )
                                                   )
                                                   )
                                                   )


       Before: Moore and Griffin, Circuit Judges; McKinley, District Judge.*

       McKinley, District Judge. Defendant-Appellant Fidelity Murchison appeals her sentence

on one count of conspiring to distribute five or more kilograms of powder cocaine and fifty or more

grams of crack cocaine pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(A) and one count of conspiring

to commit money laundering offenses pursuant to 18 U.S.C. § 1956(h). Murchison contends that

the United States breached the plea agreement when it failed to inform the district court as to her

cooperation. Murchison also claims that the district court erred when it failed to treat the Sentencing

Guidelines as advisory and failed to consider the sentencing factors set forth in 18 U.S.C. § 3553(a).



       *
         The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western
District of Kentucky, sitting by designation.
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For the reasons that follow, we VACATE Murchison’s sentence and REMAND the case to the

district court.

                                            I. FACTS

        On April 5, 2005, Defendant was indicted along with five co-defendants by a federal grand

jury in the Eastern District of Tennessee on two criminal counts stemming from a conspiracy to

distribute cocaine. Count One charged Defendant with conspiring to distribute five or more

kilograms of a mixture and substance containing a detectable amount of cocaine hydrochloride and

50 grams or more of a mixture or substance containing crack cocaine in violation of 21 U.S.C. §§

846 and 841(b)(1)(A). Count Two charged Defendant with conspiring to commit money laundering

offenses in violation of 18 U.S.C. § 1956(h).

        On July 18, 2005, Defendant entered a plea of guilty to Counts One and Two pursuant to a

plea agreement with the United States. Under the terms of the plea agreement, Defendant agreed

“to waive all rights to appeal her conviction or sentence on any ground, including those rights

contained in Title 18, United States Code, Section 3742 provided that the sentence does not exceed

the statutory maximum for her crimes or does not otherwise constitute a violation of law.” Joint

Appendix (“J.A.”) at 36. The plea agreement also provided that at sentencing, the United States

would bring to the district court’s attention the nature, extent, and value of the defendant’s

cooperation. On October 19, 2005, Defendant was sentenced to concurrent terms of imprisonment

of 97 months on each conviction, followed by three years supervised release. The United States

failed to inform the district court of Defendant’s cooperation. Defendant filed her timely notice of
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appeal on October 28, 2005.

                                           II. ANALYSIS

       Murchison advances three arguments on appeal: (1) appellate review is not barred by her

waiver of the right to appeal her sentence contained in the plea agreement; (2) the government

breached the plea agreement when it failed to inform the district court as to the nature, extent, or

value of her cooperation; and (3) the district court erred when it failed to treat the Sentencing

Guidelines as advisory and failed to properly review the sentencing factors set forth in 18 U.S.C. §

3553(a).

                                         A. Appeal Waiver

       Murchison first argues that despite the fact that the plea agreement contained an appellate-

review waiver, this court has jurisdiction to hear her appeal.       The plea agreement provides in

relevant part that, “defendant knowingly and voluntarily agrees to waive all rights to appeal her

conviction or sentence on any ground, including those rights contained in Title 18, United States

Code, Section 3742 provided that the sentence does not exceed the statutory maximum for her

crimes or does not otherwise constitute a violation of law.” J.A. at 36. Murchison argues that

because her waiver was invalid due to the breach of the plea agreement by the government, this

Court should consider the merits of her appeal to determine if her sentence was lawful. Murchison

also contends that because the district court told her that she had the right to appeal her case and the

government failed to object or challenge the statement by the district court, the government does not

have standing to object to an appeal. Further, Murchison argues that she has the right to rely on the

statements of the district court and those statements should be enforced by this Court. The
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Government concedes that appellate review is not barred by Defendant’s waiver of her right to

appeal her sentence.

       We review de novo the question of whether a defendant waived her right to appeal her

sentence. United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005). A defendant in a criminal

case may waive the right to appeal as long as the defendant waives the right knowingly and

voluntarily. United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001). A knowing and

voluntary waiver of a right to appeal normally is valid and will preclude review of an issue on

appeal. Id. at 764-65.

       Initially, the district court’s misstatement to Murchison at sentencing that she could appeal

her sentence does not prevent this Court from enforcing the appellate-review waiver in the plea

agreement. 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. Therefore, if the

waiver contained in the plea agreement prevents Murchison from challenging her sentence, the

waiver will preclude review of the issues raised by Murchison on appeal.

       In her agreement with the government, Murchison waived her right to appeal her sentence

“provided that the sentence does not exceed the statutory maximum for her crimes or does not

otherwise constitute a violation of law.” J.A. at 36. Waiver of the right to appeal a sentence that

does not otherwise constitute a violation of law “requires this court to determine if the sentence

complies with law and, therefore, does not really function as an appeal waiver.” United States v.

Dellheim, 187 F. App’x 573, 576 (6th Cir. July, 6, 2006)(unpublished)(holding that a waiver of the

right to appeal any “lawful sentence” was “effectively nugatory” and did not function as an appeal
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waiver). Accordingly, given the language of the waiver provision and the government’s concession

of this point, we will consider Murchison’s arguments on the merits.

                                  B. Breach of the Plea Agreement

        Murchison argues that the government breached the plea agreement when it failed to properly

inform the district court as to the nature, extent, or value of the her cooperation. Paragraph 10 of the

plea agreement provides in relevant part that “[a]t the time of sentencing, the United States will

bring to the court’s attention the nature, extent, and value of the defendant’s cooperation. This

information will be provided to the court so that it may be considered in determining a fair and

appropriate sentence under the facts of the case.” J.A. at 33. Murchison argues that by standing

silent concerning her cooperation, the government’s breach amounted to reversible error under a

plain error standard of review. Murchison requests that this court vacate her sentence and remand

the case for specific performance of this provision of the plea agreement. The government concedes

that it unintentionally failed to advise the district court at the time of sentencing of the nature, extent,

and value of Murchison’s cooperation as anticipated by the plea agreement. The government does

not oppose a remand for specific performance of this provision of the plea agreement.

        The court reviews the question of whether the government’s conduct violated its plea

agreement with a defendant de novo. United States v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002).

However, because Murchison failed to object after the government did not inform the district court

of her cooperation, any breach of the plea agreement is reviewed for plain error. Id.; United States

v. Caruthers, 458 F.3d 459, 473 (6th Cir.), cert. denied, 127 S. Ct. 752 (2006). Under a plain error

standard, this Court may reverse only if it is found that “(1) there is an error; (2) that is plain; (3)
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which affected the defendant’s substantial rights; and (4) that seriously affected the fairness, integrity

or public reputation of the judicial proceedings.” Barnes, 278 F.3d at 646.

        The plea agreement indicates that the government expressly agreed to advise the district

court at the time of sentencing of the nature, extent, and value of Murchison’s cooperation.

However, at her sentencing, the government failed to do so. “‘[W]hen a plea rests in any significant

degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the

inducement or consideration, such promise must be fulfilled.’” Id. at 647 (citing Cohen v. United

States, 593 F.2d 766, 771 (6th Cir. 1979)). See also Santobello v. New York, 404 U.S. 257 (1971).

        The Government’s failure to argue the terms of [the plea agreement] to the district
        court at the sentencing hearing constituted a breach of the plea agreement. And
        because violations of plea agreements on the part of the government serve not only
        to violate the constitutional rights of the defendant, but directly involve “the honor
        of the government, public confidence in the fair administration of justice, and the
        effective administration of justice in a federal scheme of government,” we hold that
        the Government’s breach constituted plain error.

Barnes, 278 F.3d at 648 (quoting United States v. McQueen, 108 F.3d 64, 66 (4th Cir.

1997)(citations omitted)).

        Given the above case law and the government’s concession of this point, we find the

government’s breach of the plea agreement amounted to reversible error under a plain error standard

of review.

                                         III. CONCLUSION

        For the reasons above, we VACATE the sentence and REMAND to the district court for

resentencing. In light of the government’s concession that resentencing is necessary, we decline to

address Murchison’s other challenges to her sentence.
