                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0186n.06

                                          No. 13-2574
                                                                                       FILED
                                                                                 Mar 10, 2015
                                                                             DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
MERZA MIZORI,                                           )       COURT FOR THE WESTERN
                                                        )       DISTRICT OF MICHIGAN
       Defendant-Appellant.                             )
                                                        )
                                                        )



BEFORE:        SILER, BATCHELDER, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. On May 13, 2013, Merza Mizori pled guilty to “knowingly and

intentionally distribut[ing] over 28 grams of cocaine base . . . and aid[ing] and abet[ting] . . .

[another] in the offense.” In exchange for his guilty plea, the U.S. Attorney’s Office agreed to

dismiss the remaining 11 counts charged in the indictment. The written plea agreement, signed

by Mizori, expressly provided that the dismissed charges could factor into the court’s sentencing

determination. Accordingly, at sentencing, the district court relied on all of the charges—

including those that had been dismissed—as well as the drug quantity alleged for the entire

conspiracy—472.28 grams—to calculate Mizori’s base offense level. The district court then

sentenced Mizori to 300 months’ imprisonment, followed by five years of supervised release.

On appeal, Mizori contends that: (1) he did not knowingly and intelligently enter into the plea

agreement because he was not aware that the court could consider dismissed charges in
No. 13-2574
United States of America v. Merza Mizori

calculating his sentencing guidelines range; and (2) it was fundamentally unfair for the court to

increase his sentence based on dismissed charges.         Because the very terms of the plea

agreement—an agreement signed by Mizori—specified that the court could consider dismissed

charges at sentencing, and we have repeatedly held that dismissed charges may factor into a

district court’s sentencing determination, Mizori’s conviction and sentence must be upheld.

       On January 9, 2013, a grand jury returned a 42-count indictment against Merza Mizori

and four co-defendants, charging Mizori with 12 counts related to conspiracy to distribute,

possession with intent to distribute, and distribution of cocaine base and other illegal narcotics.

On May 13, 2013, Mizori pled guilty to count 39, which charged him with “knowingly and

intentionally distribut[ing] over 28 grams of cocaine base (crack cocaine) . . . and aid[ing] and

abet[ting] [another] in this offense.”

       Pursuant to the terms of the written plea agreement, the U.S. Attorney’s Office agreed to

“move to dismiss the remaining [11] counts of the Indictment against [him] at the time of

sentencing” in exchange for his guilty plea. Mizori, however, “agree[d] . . . that in determining

the sentence the Court may consider the dismissed charges in determining the applicable range

under the Guidelines, where the sentence should fall within the applicable Guidelines range, and

the propriety of any departure from the calculated Guidelines range.” (Emphasis added.) Mizori

further waived his right to appeal the sentence imposed and the “manner in which the sentence

was determined,” unless the sentence exceeded the statutory maximum or was “based upon an

unconstitutional factor, such as race, religion, national origin or gender.” Mizori signed the plea

agreement, acknowledging:

       I have read this Plea Agreement and carefully discussed every part of it with my
       attorney. I understand the terms of this Agreement, and I voluntarily agree to
       those terms. My attorney has advised me of my rights, of possible defenses, of
       the sentencing provisions, and of the consequences of entering into this

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No. 13-2574
United States of America v. Merza Mizori

        Agreement. No promises or inducements have been made to me other than those
        contained in this Agreement. No one has threatened or forced me in any way to
        enter into this Agreement. Finally, I am satisfied with the representation of my
        attorney in this matter.

        At Mizori’s change of plea hearing, the court explained the key aspects of the plea

agreement. The court informed Mizori that a guilty plea to count 39 carried a maximum

sentence of 40 years’ imprisonment, with a mandatory minimum of five years’ imprisonment,

explained that in determining his sentence, the court would calculate an advisory sentencing

guidelines range, and discussed the consequences of the appellate waiver provision. In response

to the court’s questions, Mizori stated that he had had “ample opportunity” to discuss his case

and “the ramifications of the plea agreement” with his attorney and that he was satisfied with his

attorney’s work and representation. Once satisfied that Mizori had sufficiently pled the facts of

the crime, and that his plea had been given “freely and voluntarily,” the court accepted Mizori’s

plea.

        At Mizori’s sentencing hearing, the court considered the dismissed charges and applied

several enhancements related to his involvement in the drug distribution conspiracy, a conspiracy

that included his crime of conviction. Because Mizori was a manager or supervisor of the

conspiracy, the court also calculated his base offense level based on the distribution of

472.8 grams of cocaine base—the drug quantity alleged for the entire conspiracy.            After

determining that the advisory guidelines range was 292 to 365 months’ imprisonment, the court

sentenced Mizori to 300 months’ imprisonment, followed by five years of supervised release.

On appeal, Mizori contests the validity of his plea agreement, claiming that it was not entered

into knowingly and intelligently because he did not know that the dismissed charges could

enhance his sentencing guidelines range.       Mizori also contends that consideration of the

dismissed charges at sentencing was “fundamentally unfair.”

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No. 13-2574
United States of America v. Merza Mizori

       Mizori’s plea is valid because it was entered into knowingly, intelligently and voluntarily,

the three factors required under United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005).

Though Mizori now contends that his plea was not entered into knowingly and intelligently

because he did not understand that the court could consider dismissed charges at sentencing, the

terms of the written plea agreement demonstrate otherwise. Immediately after agreeing to “move

to dismiss the remaining counts of the Indictment . . . at the time of sentencing,” the U.S.

Attorney’s Office explicitly and unambiguously informed Mizori that the court could consider

such counts in determining his sentence. Mizori agreed “that in determining the sentence the

Court may consider the dismissed charges in determining the applicable range under the

Guidelines, where the sentence should fall within the applicable Guidelines range, and the

propriety of any departure from the calculated Guidelines range.” (Emphasis added.) Further, in

signing the agreement, Mizori acknowledged that he had “read th[e] Plea Agreement and

carefully discussed every part of it with [his] attorney,” including “the consequences of entering

into [it].” Because any reasonable person, having read the dismissed counts provision, would

understand that the court could consider dismissed charges at sentencing, Mizori cannot now

claim that his plea was invalid simply because he did not understand the provision. “Plea

agreements are contractual in nature, and . . . courts are guided by general principles of contract

interpretation when construing [them].” United States v. Moncivais, 492 F.3d 652, 662 (6th Cir.

2007). The “determinative factor in interpreting a plea agreement is not the parties’ actual

understanding of the terms of the agreement,” but rather how “a reasonable person would

interpret its words.” Id. at 663.

       Despite Mizori’s contentions in his Reply brief, the fact that the court did not discuss the

dismissed conduct provision at the sentencing hearing does not render an unambiguous provision


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No. 13-2574
United States of America v. Merza Mizori

invalid. Though the court has the duty to “inform the defendant of, and determine that the

defendant understands,” the enumerated aspects of his plea agreement, Fed. R. Crim. P. 11(b)(1),

neither Rule 11 nor our court’s precedents required the court to discuss how Mizori’s dismissed

counts could factor into the court’s sentencing determination.

       Because a review of the change of plea hearing transcript reveals that the court met its

Rule 11 obligations and ensured that Mizori understood the key aspects of his agreement, the

court correctly determined that Mizori’s plea was knowing and intelligent. The court informed

Mizori that a guilty plea carried a maximum sentence of 40 years’ imprisonment, with a

mandatory minimum of five years’ imprisonment, and discussed the consequences of an

appellate waiver provision. The court also stressed that the calculated sentencing guidelines

range would be advisory, explained that he could “go above them, . . . below them, or . . . stay

within” them, and ensured that no one had predicted what Mizori’s sentence might be. Further,

in response to the court’s questions, Mizori stated that he had had “ample opportunity” to discuss

his case and “the ramifications of the plea agreement” with his attorney. Thus, the record before

us supports the conclusion that Mizori’s plea was knowingly and intelligently made.

       Mizori also appears to argue that trial counsel was ineffective because he failed to clarify,

during the sentencing hearing, how the dismissed charges could affect the court’s sentencing

determination. We do not reach this argument. Review of ineffective assistance of counsel

claims is not preferred on direct appeal, Mizori presents no evidence regarding what advice he

did (or did not) receive from his attorney before the hearing, and such facts are more

appropriately developed at the district court level. “The more preferable route for raising an

ineffective assistance of counsel claim is in a post-conviction proceeding under 28 U.S.C.




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No. 13-2574
United States of America v. Merza Mizori

§ 2255, whereby the parties can develop an adequate record.” United States v. Valdez, 362 F.3d

903, 913−14 (6th Cir. 2004) (internal quotations and citation omitted).

       Mizori’s challenges to the use of the dismissed charges at sentencing—charges dismissed

in exchange for his guilty plea—are meritless because he waived his right to appeal. “When a

defendant 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.” United

States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003) (internal quotations and citation omitted).

Pursuant to the terms of Mizori’s plea agreement, Mizori waived his right to appeal the sentence

imposed and the “manner in which the sentence was determined,” unless the sentence exceeded

the statutory maximum or was “based upon an unconstitutional factor, such as race, religion,

national origin or gender.” Mizori attempts to frame his challenges to the use of dismissed

charges in such a way as to undermine the validity of the plea agreement itself—suggesting, for

instance, that the use of such charges at sentencing violates basic notions of due process and

fairness in the limited circumstance that a defendant “ple[ads] guilty in exchange for the

dismissal of those same counts.” In actuality, however, Mizori’s claims attack the “manner in

which the sentence was determined,” by challenging the court’s use of dismissed charges in

calculating his sentencing guidelines range. Mizori expressly waived his right to raise such an

argument on appeal under the terms of the plea agreement. Because there is nothing in the

record to suggest that Mizori misunderstood the scope of his waiver of appellate rights, and the

court complied with the Federal Rules of Criminal Procedure, Rule 11(b)(1)(N) by informing

Mizori of the appellate waiver provision and ensuring that he understood it, Mizori cannot

challenge the use of dismissed charges at sentencing on appeal.




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No. 13-2574
United States of America v. Merza Mizori

       Further, even if we were to consider the merits of Mizori’s challenges to the use of

dismissed charges, his claims fail. We have repeatedly held that a court may consider dismissed

and acquitted conduct at sentencing when “selecting a sentence within [the prescribed] statutory

range.” United States v. White, 551 F.3d 381, 385 (6th Cir. 2008). We have permitted not only a

court’s consideration of acquitted conduct, id., but also consideration of dismissed charges in

calculating drug quantity, United States v. McDowell, 902 F.2d 451, 456 (6th Cir. 1990) (Jones,

J., concurring in part and dissenting in part), and in determining whether to depart from the

guidelines range, United States v. Cross, 121 F.3d 234, 241 (6th Cir. 1997). Moreover, because

the U.S. Attorney’s Office informed Mizori in the written plea agreement that dismissed counts

could be considered at sentencing, there was nothing inherently unfair about the court’s

consideration of such charges. As we have explained, use of dismissed charges “would be unfair

only if the defendant did not know when he entered the plea that the court could penalize him on

the basis of [such conduct].” Id. at 242.

       The judgment of the district court is affirmed.




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