                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0160n.06
                           Filed: December 16, 2004

                                             No. 03-3718

                           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
GREGORY BEST,                                        )   NORTHERN DISTRICT OF OHIO
                                                     )
       Defendant-Appellant.                          )


       Before: DAUGHTREY, COOK, and FARRIS,* Circuit Judges.


       PER CURIAM. The defendant, Gregory Best, appeals the 108-month prison

sentence he received upon pleading guilty to one count of conspiracy to defraud the United

States, nine counts of securities fraud, and four counts of interstate transportation of stolen

property, under a plea agreement negotiated with the government. Best asserts that the

district court improperly double-counted sentence adjustments and offense characteristics,

and improperly departed upward from the applicable guideline range in imposing sentence.

Because the record establishes that Best waived his right to appeal his sentence in this

matter, we must dismiss the appeal.


       From 1995 through 1999, Best, a securities dealer, conspired with another individual

in an elaborate Ponzi scheme by which Best misrepresented material facts to investors in

       *
        The Hon. Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation.
03-3718


order to obtain money from them to pay off earlier investors. In the end, Best defrauded

more than 600 investors, many of them retirees, of $24,498,405.20. After being arrested

and charged in a 22-count federal indictment, the defendant eventually entered into a plea

agreement with the government under the terms of which Best agreed to plead guilty to 14

counts of the indictment in exchange for dismissal of the remaining eight counts and a

government recommendation that the defendant’s offense level, prior to a potential three-

level reduction for acceptance of responsibility and substantial assistance, should be set

at 32. In conjunction with Best’s criminal history category of I, an adjusted offense level of

29 would subject the defendant to a sentencing range of 87-108 months according to the

agreed-upon guidelines manual effective November 1, 1998. In the plea agreement, Best

further stated his understanding that


       . . . the recommendations of the parties will not be binding upon the Court,
       that the Court alone will decide the applicable sentencing range, whether
       there is any basis to depart from that range, and what sentence to impose.
       Defendant further understands that once the Court has accepted Defendant’s
       guilty plea(s), Defendant will not have the right to withdraw such plea(s) if the
       Court does not accept any sentencing recommendations made on
       Defendant’s behalf or if Defendant is otherwise dissatisfied with the sentence.


       At sentencing, the district court adopted most elements of the plea agreement

entered into by the parties. Rather than calculate Best’s offense level at 32, prior to

deductions for acceptance of responsibility and provision of substantial assistance,

however, the district judge added an additional 2 levels to the calculation to take into

account the fact that “the offense involved a large number of vulnerable victims.” See U.S.


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SENTENCING GUIDELINES MANUAL       § 3A1.1(b)(2)(B) (1998).     Consequently, the court

calculated Best’s initial offense level as 34 and subtracted a total of three levels for

acceptance of responsibility and substantial assistance to the authorities to arrive at a

sentencing level of 31, with a commensurate sentencing range of 108-135 months. The

court sentenced Best to the low end of that range – 108 months – and the defendant now

appeals that decision.


       On appeal, the government argues that under the terms of the plea agreement, the

defendant waived his right to contest the sentence imposed upon him. As we noted in

United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003) (citations and internal quotation

marks omitted):


       It is well settled that a defendant in a criminal case may waive his right to
       appeal his sentence in a valid plea agreement. For a plea agreement to be
       constitutionally valid, a defendant must have entered into the agreement
       knowingly and voluntarily. When a [d]efendant waives his right to appeal his
       sentence in a valid plea agreement, this Court is bound by that agreement
       and will not review the sentence except in limited circumstances.


       Best does not contest the knowing and voluntary nature of the plea process in these

proceedings. Additionally, the plea agreement explicitly provided that the defendant

reserved the right to appeal only “(a) any punishment in excess of the statutory maximum;

(b) any punishment to the extent it constitutes an upward departure from the Sentencing

Guidelines range deemed most applicable by the Court,” or any claims of ineffective




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03-3718


assistance of counsel or prosecutorial misconduct. Although Best frames the increase in

his offense as an “upward departure,” that was clearly not the case.


       Because Best cannot establish any of the excepted grounds as a basis for

challenging the sentence imposed upon him, he may not now be heard to object to the

agreement that he executed. For this reason, we DISMISS the appeal, effectively affirming

the judgment of the district court.




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