                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0234p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                      No. 08-1352
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 JUMAL GEORGE JONES,
                                                 -
                                                N
                   Appeal from the United States District Court
              for the Western District of Michigan at Grand Rapids.
               No. 07-00190-001—Gordon J. Quist, District Judge.
                                 Submitted: April 21, 2009
                             Decided and Filed: July 7, 2009
         Before: BOGGS, Chief Judge; MOORE and SUTTON, Circuit Judges.

                                    _________________

                                         COUNSEL
ON BRIEF: Daniel R. Fagan, DANIEL R. FAGAN & ASSOCIATES, P.C., Grand Rapids,
Michigan, for Appellant. Jennifer L. McManus, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
      MOORE, J., delivered the opinion of the court, in which SUTTON, J., joined.
BOGGS, C. J. (pp. 9-11), delivered a separate opinion concurring in part and dissenting in
part.
                                    _________________

                                         OPINION
                                    _________________

        KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Jumal George
Jones (“Jones”) pleaded guilty to one count of possession with intent to distribute over fifty
grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and one
count of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18
U.S.C. § 924(c). He now appeals the ten-year mandatory-minimum sentence imposed for


                                              1
No. 08-1352         United States v. Jones                                             Page 2


possession with intent to distribute over fifty grams of cocaine base. Jones argues that the
ten-year sentence is so grossly disproportionate as applied to him that it amounts to cruel and
unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Because
we conclude that the ten-year sentence does not offend the “narrow proportionality
principle” of Harmelin v. Michigan, 501 U.S. 957, 996-1009 (1991) (Kennedy, J.,
concurring), we AFFIRM Jones’s sentence.

                                    I. BACKGROUND

        On November 1, 1996, officers from the Lansing, Michigan Police Department
executed a search warrant at a residence in Lansing. Officers found Jones and six others
inside, and a search of the residence recovered crack pipes, a digital scale, and packaging
material. After Jones told officers that he had a gun in his pocket, a search of Jones
recovered a loaded semiautomatic pistol with an obliterated serial number, $600 in cash, and
the keys to a 1993 GMC minivan. During a search of the minivan, officers found a digital
scale and 91.95 grams of crack cocaine. After being informed of his Miranda rights, Jones
admitted that he and his younger brother had driven the minivan from Chicago to Lansing
that day. He said that he had taken the gun, which he purchased on the street in Chicago,
into the residence for protection because he believed it to be a crack house. Two witnesses
told officers that they had purchased crack cocaine at the residence and understood Jones to
be the residence’s main supplier of crack cocaine. Although Jones denied any knowledge
of the crack cocaine found in the minivan at the time, he later admitted that this had been his
fifth trip from Chicago to Lansing to sell crack cocaine. After purchasing crack cocaine in
Chicago, Jones traveled to Lansing to sell it and had made a total of some $12,500 in crack-
cocaine sales. Presentence Investigation Report (“PSR”) at 4-6.

        On August 9, 2007, a grand jury returned a three-count indictment charging Jones
in count one with possession with intent to distribute fifty grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), in count two with being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and in count three with
possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C.
§ 924(c). On December 5, 2007, Jones pleaded guilty to counts one and three pursuant to
a written plea agreement. Under the plea agreement, the government agreed to dismiss count
No. 08-1352          United States v. Jones                                             Page 3


two and not to file supplementary charges pursuant to 21 U.S.C. §§ 841(b)(1)(A)(iii) and 851
that could have resulted in a life sentence. The plea agreement also contained a waiver-of-
appeal provision under which Jones “waive[d] the right to appeal any sentence which is at
or below the maximum of the guideline range as determined by the Court,” but still
“retain[ed] the right to appeal a sentence above the guideline range.” Plea Agreement ¶ 10.

        The PSR held Jones responsible for 108.96 grams of cocaine base, based upon the
91.95 grams found in the minivan and application of a crack/cash conversion ratio to the
$600 seized from Jones’s person. The PSR calculated a total offense level of 27 and a
criminal history category of I, resulting in a guideline range of between 70 and 87 months
of imprisonment. However, the two counts to which Jones pleaded guilty carried statutory
minimum terms of imprisonment: 120 months for possession with intent to distribute fifty
grams or more of cocaine base pursuant to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and
60 months for possession of a firearm in furtherance of a drug-trafficking crime in violation
of 18 U.S.C. § 924(c), to be served consecutively.

        On February 28, 2008, Jones filed a sentencing memorandum. Jones stated that he
“understood that [m]andatory [m]inimums have to be followed,” but pointed out that were
it not for the mandatory minimum his “guidelines range for Count I would be substantially
less than the mandatory minimum he will be required to serve.” Jones Sent. Mem. at 3.
Noting that the district court had “its hands tied,” Jones requested that the court sentence him
“to the absolute minimum possible sentence allowed by statute.” Id. Jones also expressed
his hope that he would “have a chance in the future to be before [the district] court under a
[Federal Rule of Criminal Procedure] 35(b) [motion] so that the excessive length of this
mandatory sentence can be justly shortened.” Id. at 4.

        On March 4, 2008, the district court sentenced Jones to the mandatory-minimum
sentences for both counts: 120 months for possession with intent to distribute fifty grams
or more of cocaine base, and 60 months for possession of a firearm in furtherance of a drug-
trafficking offense, to be served consecutively. Jones timely appealed.

        On May 5, 2008, the government filed a motion to dismiss Jones’s appeal, arguing
that Jones had waived the right to appeal his sentence in the plea agreement. Jones filed a
response on June 4, 2008. A motions panel of this court denied the motion to dismiss on
No. 08-1352         United States v. Jones                                            Page 4


July 28, 2008, stating that “[t]he parties may address the waiver issues within the appellate
briefs.” United States v. Jones, No. 08-1352, slip op. at 2 (6th Cir. July 28, 2008)
(unpublished order).

                                      II. ANALYSIS

A. Appellate Waiver

        We initially address the government’s argument that Jones waived, via his plea
agreement, the right to appeal the ten-year mandatory-minimum sentence imposed pursuant
to 21 U.S.C. § 841(b)(1)(A)(iii). “We review the question of whether a defendant waived
his right to appeal his sentence in a valid plea agreement de novo.” United States v.
McGilvery, 403 F.3d 361, 362 (6th Cir. 2005). “[P]lea agreements are to be interpreted
strictly, with ambiguities construed against the government.” United States v. Caruthers,
458 F.3d 459, 470 (6th Cir.), cert. denied, 549 U.S. 1088 (2006).

        Under the plea agreement, Jones “waive[d] the right to appeal any sentence which
is at or below the maximum of the guideline range as determined by the Court,” but he
“retaine[d] the right to appeal a sentence above the guideline range.” Plea Agreement ¶ 10.
The government argues that Jones’s “mandatory minimum sentence is not ‘above’ the
guideline range; it is the guideline sentence.” Gov’t Br. at 6. In support of this argument,
the government cites Guideline § 5G1.1(b), which provides that “[w]here a statutorily
required minimum sentence is greater than the maximum of the applicable guideline range,
the statutorily required minimum sentence shall be the guideline sentence.”             U.S.
SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 5G1.1(b) (2007). The government
essentially argues that because Jones’s 180-month sentence is the “guideline sentence,” it
also constitutes the “guideline range” referenced in the plea agreement. Jones counters that
the waiver provision of the plea agreement does not apply because his statutory-minimum
sentence of 180 months (120 months for the drug-trafficking count and 60 months for the
§ 924(c) count) is significantly above the applicable guideline range of 70 to 87 months
determined by the district court. Thus, Jones argues that the term “guideline range” in the
plea agreement refers to the range of 70 to 87 months calculated by the district court before
applying the statutory minimums, while the government contends that it means the
mandatory-minimum sentence of 180 months. We believe that § 5G1.1 is susceptible to two
No. 08-1352           United States v. Jones                                             Page 5


reasonable interpretations, one of which favors the meaning of “guideline range” urged by
Jones and one of which favors the meaning urged by the government.

          First, § 5G1.1 reasonably may be construed to support the meaning of “guideline
range” advanced by Jones. On this view, § 5G1.1 refers to two distinct concepts: the
“applicable guideline range” and the “guideline sentence.” The applicable “guideline range”
is determined by the sentencing court based on the defendant’s offense level and criminal
history. When the statutory-minimum sentence is greater than the top of the guideline range
calculated by the sentencing court, the statutory minimum effectively trumps the guideline
range and becomes the “guideline sentence.” U.S.S.G. § 5G1.1(b). Thus, § 5G1.1(b)
contemplates a two-step process: first, the sentencing court must calculate the applicable
guideline range; next, the sentencing court must determine whether the statutory minimum
exceeds the top of the properly calculated guideline range. If the statutory minimum is
greater than the top of the guideline range, the statutory minimum becomes the guideline
sentence. On this reading of § 5G1.1(b), the guideline range does not become equivalent
to, or merge into, the statutory minimum/guideline sentence.

          The dissent offers another reasonable reading of § 5G1.1. In the dissent’s view,
when there is a mandatory minimum that is above the guideline range calculated by the
sentencing court, that mandatory minimum, though a single point, becomes the “guideline
range.”

          In light of these conflicting interpretations of “guideline range,” we believe that the
appeal waiver at issue in this case is ambiguous. This ambiguity is highlighted by the fact
that other U.S. Attorneys’ offices evidently employ appeal waivers that eliminate this
ambiguity by requiring a defendant to waive his right to appeal unless the sentence exceeds
the greater of either the guideline range or the mandatory minimum. See, e.g., United States
v. Collins, 264 F. App’x 513, 515 (7th Cir. 2008) (order) (appeal waiver requiring the
defendant to waive any challenge to a sentence unless “the sentence imposed is in excess of
the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum,
whichever is greater)”). We have repeatedly emphasized that ambiguities in plea agreements
must be construed against the government. See, e.g., Caruthers, 458 F.3d at 470; United
States v. Fitch, 282 F.3d 364, 367-68 (6th Cir. 2002); United States v. Johnson, 979 F.2d
No. 08-1352            United States v. Jones                                                       Page 6


396, 399 (6th Cir. 1992). Given this principle, we conclude that the phrase “above the
guideline range” in the plea agreement means above the guideline range of 70 to 87 months
of imprisonment calculated by the district court before it applied the mandatory minimums.
Accordingly, we hold that Jones has not waived his right to appeal the ten-year minimum
sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(A)(iii).

B. Proportionality Review

         Jones’s sole argument on appeal is that the ten-year mandatory-minimum sentence
imposed pursuant to 21 U.S.C. § 841(b)(1)(A)(iii) for possession with intent to distribute
over fifty grams of cocaine base is so grossly disproportionate to the offense committed that,
as applied to Jones, it amounts to cruel and unusual punishment in violation of the Eighth
Amendment to the U.S. Constitution. “A constitutional challenge to a sentence is a question
of law and reviewed de novo.” United States v. Marks, 209 F.3d 577, 583 (6th Cir.), cert.
denied, 531 U.S. 882 (2000).

         We have adopted the “narrow proportionality principle” articulated in Justice
Kennedy’s opinion in Harmelin v. Michigan, 501 U.S. 957, 996-1009 (1991) (Kennedy, J.,
                                                                                           1
concurring). See United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991). “Under this
approach, there is no requirement of strict proportionality; the eighth amendment is
offended only by an extreme disparity between crime and sentence.” Id. Applying the
narrow proportionality principle, the controlling opinion in Harmelin upheld Michigan’s
penalty of a mandatory life sentence without the possibility of parole for possession of
more than 650 grams of cocaine, even though the defendant had no prior felony
convictions. Harmelin, 501 U.S. at 1009 (Kennedy, J., concurring).2




         1
           In the context of determining “clearly established “ law for purposes of 28 U.S.C. § 2254(d)(1),
the Supreme Court has also focused upon Justice Kennedy’s opinion in Harmelin. See Lockyer v.
Andrade, 538 U.S. 63, 73 (2003) (“[T]he only relevant clearly established law . . . is the gross
disproportionality principle, the precise contours of which are unclear, applicable only in the ‘exceedingly
rare’ and ‘extreme’ case.” (quoting Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring))).
         2
          Although we have suggested in dicta that “[f]ederal courts will not engage in a proportionality
analysis except in cases where the penalty imposed is death or life in prison without possibility of parole,”
United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995), Justice Kennedy’s opinion in Harmelin
recognized the possibility that proportionality review could apply to invalidate a sentence for a term of
years, 501 U.S. at 997-98 (Kennedy, J., concurring).
No. 08-1352        United States v. Jones                                          Page 7


       We previously have upheld against proportionality attack a mandatory sentence
of life imprisonment without parole for a defendant convicted of conspiracy to distribute
cocaine base who was held accountable for 177.8 grams of cocaine base. United States
v. Hill, 30 F.3d 48, 49-50 (6th Cir.), cert. denied, 513 U.S. 943 (1994). Because it was
the defendant’s third felony-drug conviction, 21 U.S.C. § 841(b)(1)(A)(iii) provided for
a mandatory life sentence without the possibility of parole. We applied the narrow
proportionality principle of Harmelin and concluded that the defendant’s “mandatory life
sentence without parole was not so ‘grossly disproportionate’ to his crime as to violate
the Eighth Amendment.” Id. at 50.

       In the instant case, Jones pleaded guilty to possession with intent to distribute
fifty grams or more of cocaine base. Like the defendant in Hill, Jones was convicted of
a drug-trafficking offense and was held accountable for a large amount of cocaine base
(here 108.96 grams). Moreover, the mandatory life sentence that we upheld in Hill was
a far more severe penalty than the ten-year sentence that Jones now challenges.
Although Jones points out that his “history as an adult is relatively crime free” and that
he scored just one criminal-history point, Jones Br. at 6, the Supreme Court in Harmelin
upheld a mandatory life sentence for possession of 672 grams of cocaine despite the fact
that the defendant had no prior felony convictions.

       Applying the narrow proportionality principle of Harmelin and in light of our
precedents, we cannot say that this case presents the kind of extreme disparity between
the sentence imposed and the crime committed that would offend the Eighth
Amendment.      Because we conclude that the ten-year sentence is not grossly
disproportionate to the offense committed, we do not conduct comparative analyses of
the sentences imposed for the commission of the same crime within this jurisdiction or
in other jurisdictions. See Harmelin, 501 U.S. at 1005 (“[I]ntrajurisdictional and
interjurisdictional analyses are appropriate only in the rare care in which a threshold
comparison of the crime committed and the sentence imposed leads to an inference of
gross disproportionality.”).
No. 08-1352     United States v. Jones                         Page 8


                             III. CONCLUSION

      For the foregoing reasons, we AFFIRM Jones’s sentence.
No. 08-1352         United States v. Jones                                           Page 9


              ________________________________________________

                CONCURRING IN PART, DISSENTING IN PART
              ________________________________________________

        BOGGS, Chief Judge, concurring in part and dissenting in part. With respect to
the merits of this appeal, I agree with the thorough analysis of the lead opinion that the
sentence should be affirmed. However, I believe that we should not reach the merits of
the appeal because Mr. Jones legally waived his right to appeal in the plea agreement
and such agreements are enforceable. See, e.g., United States v. Gibney, 519 F.3d 301,
306 (6th Cir. 2008); United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (“It
is well settled that a defendant in a criminal case may waive any right, even a
constitutional right, by means of a plea agreement.”).

        The plea agreement clearly states that Jones “waive[d] the right to appeal” if his
sentence “is at or below the maximum of the guideline range as determined by the
Court,” but could appeal “a sentence above the guideline range.” Jones was sentenced
to what, all agree now, was the proper sentence under the guidelines. However, there
might be two reasons that arguably would allow Jones to escape his clear and bargained-
for waiver. The first of these is that, for technical reasons discussed below, his sentence,
which fully complied with the guidelines, was indeed “above the guideline range” rather
than “at or below the maximum of the guideline range.” The second reason would be
that, regardless of the language of the signed waiver, Jones did not in fact understand
and agree knowingly to the waiver. The lead opinion relies only on the first basis, but
I will address both, and explain why they do not vitiate the waiver.

                               The Guideline Architecture

        In a common-sense manner, the guidelines establish a method for determining
a range of possible sentences, from which the judge generally may chose a sentence.
Thus, a common range might be 90-120 months, from which the judge could chose a
particular specific sentence. However, the guidelines specifically contemplate that this
“range” can be altered when required by statute as, for example, with a mandatory
minimum or maximum sentence. The guidelines specifically state, at U.S. SENTENCING
No. 08-1352        United States v. Jones                                          Page 10


GUIDELINES MANUAL(“U.S.S.G”) § 5G1.1(b) (2007), that when the otherwise applicable
range is impacted by such a restraint, the applicable “range” is now restricted so that the
minimum of the range is the statutory minimum, or the maximum of the range is the
statutory maximum.

       Thus, if, in the above example, there were a mandatory minimum of 100 months,
the “range” would become 100-120 months. Further, under the explicit language of this
section, if the mandatory minimum were to be 120 months, the “range” would clearly
be 120-120 months, or, in fact a single point. U.S.S.G. § 5G1.1(c)(2). Gibney, 519 F.3d
at 303 (interpreting a plea agreement that said the defendant waived his right to appeal
“a sentence of imprisonment within the applicable Guideline Range, but not less than
any mandatory minimum sentence required by law.”). I don’t think there is any
disagreement in the analysis thus far.

       In the case of a mandatory minimum that is above the otherwise established
“range,” the guideline language simply says that the mandatory minimum is the
guideline sentence. U.S.S.G. § 5G1.1(b). However, as just indicated, there is nothing
anomalous with the approved “range” being a single point, and thus I see no dispositive
significance in the use of “guideline sentence” rather than “guideline range” in also
specifying a single point that is the appropriate sentence under the guidelines.

       The general import of “range” in the guideline architecture is to specify all
possible sentences that a judge can give without entering the areas of considerations of
“departures from the guideline range” as governed by §§ 5K1.1-5K2.24 of the
guidelines.

                                 Analysis of This Case

       That is exactly what happened in this case. In fact, the normal sentence,
available without engaging in the analysis required for a permissible departure, was the
sentence that Jones actually received, 180 months. Thus, I believe that the judge’s
sentence did not trigger the “above the maximum of the guideline range” exception to
Jones’s waiver of his appeal rights.
No. 08-1352          United States v. Jones                                       Page 11


          The plea agreement signed by the defendant unambiguously indicates that he will
be sentenced to a minimum of 180 months in prison. Plea Agreement ¶ 3 (noting that
the statutory minimum sentence for violating 21 U.S.C. § 841(b)(1)(A)(iii) is a ten-year
term of imprisonment and the statutory minimum sentence for violating 18 U.S.C.
§ 924(c) is a five-year term of imprisonment to run consecutive with any other
sentence.).

          In addition, the colloquy at the sentencing hearing, although initially
complicated, thoroughly thrashed out and explained the required sentence. The
defendant quite perspicaciously asked “but if it’s a mandatory minimum, does that
mean—that means he [the judge] has to stay at that amount?” and the judge clearly
answers: “Yes.” After some further discussion, the prosecutor stated: “[T]he judge is
still subject to the mandatory minimum and he cannot, under the law, sentence you to
anything under the mandatory minimum unless the government asks for the release of
the mandatory minimum.” The defendant responds “Right. Okay.” His counsel also
agrees and the defendant then says, in his own words: “So the judge is bound by the
mandatory minimums regardless of anything else that’s going on . . . .” The court then
says again “[y]ou have agreed to . . . giving up your rights to appeal your sentence to
a higher court. If [I] were to sentence you above the guidelines you continue to have
your right to appeal to a higher court.” And defendant specifically says that he
understands and agrees to this.

          As I read the transcript, this issue was thoroughly explored and defendant
understood that the mandatory minimum operated as the guideline sentence, and I would
not give him a second bite at the apple when the waiver of appeal was part of the
bargained-for plea agreement. Thus, I agree with the ultimate outcome that Jones should
get no relief, but I do so for the reason that I believe that we should enforce the appeal
waiver.
