                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 18a0521n.06

                                           No. 17-5864

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                                    FILED
 UNITED STATES OF AMERCA,                                 )                    Oct 19, 2018
                                                          )               DEBORAH S. HUNT, Clerk
           Plaintiff-Appellee,                            )
                                                          )
                                                                 ON APPEAL FROM THE
                  v.                                      )
                                                                 UNITED STATES DISTRICT
                                                          )
                                                                 COURT FOR THE EASTERN
 DAEQUON CHARLES DAVIS,                                   )
                                                                 DISTRICT OF TENNESSEE
                                                          )
           Defendant-Appellant.                           )
                                                          )



BEFORE: CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.*

       ZOUHARY, District Judge.

       Defendant-Appellant Daequon Charles Davis appeals his conviction and sentence. The

Government moves to dismiss the appeal, arguing Davis entered a valid plea agreement that

waived his right to appeal.

                                          BACKGROUND

       In the fall of 2013, members of the Johnson City Police Department and the Federal Bureau

of Investigation launched a joint investigation into a suspected drug-trafficking ring in the Eastern

District of Tennessee. As part of this investigation, numerous confidential informants were

developed and utilized to conduct controlled drug buys with suspected members of the drug ring.

Three of these controlled buys involved Davis.


       *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 17-5864, United States. v. Davis


       After the third controlled buy, law enforcement confronted Davis and expressed interest in

speaking with him. Davis consented to an interview, where he confessed to his involvement in the

crack-cocaine conspiracy underlying his current conviction. He then allowed law enforcement to

search his apartment. During the search, law enforcement uncovered $4,140 in a drawer along

with approximately 45 grams of crack cocaine. Based on Davis’ confession, the three controlled

buys, and statements of cooperators and coconspirators, law enforcement estimated that Davis was

personally responsible for distributing at least 9,000 grams of crack cocaine, with drug proceeds

of about $212,000.

       In November 2015, a grand jury returned an eleven-count indictment against Davis and

three co-defendants: Hayward Dargan, Jr., Lamont Darnell Fortune, and Charles Lee Loftly.

Count One of the indictment charged the co-defendants with conspiring to distribute, and

possessing with the intent to distribute, 280 grams or more of crack cocaine in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Counts Nine, Ten, and Eleven charged Davis with

distributing 28 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).

       Davis subsequently entered into a written plea agreement. In exchange for his guilty plea

to the conspiracy charge, the Government agreed to dismiss the remaining counts against him and

to seek an increased sentence based on only one prior drug conviction, rather than three. Davis

stipulated to facts concerning the three controlled buys, his confession, and the search of his

apartment. The parties agreed that, given Davis’ prior felony drug conviction, he faced a

mandatory minimum sentence of twenty years and a maximum sentence of life. For purposes of

sentencing, Davis also admitted he was personally accountable for at least 2.8 kilograms, but less

than 8.4 kilograms, of crack cocaine. The plea agreement included a waiver provision in which

Davis agreed not to file a direct appeal of his conviction or sentence. However, he retained the


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No. 17-5864, United States. v. Davis


limited “right to appeal a sentence imposed above the sentencing guidelines range determined by

the Court or above any mandatory minimum sentence deemed applicable by the Court, whichever

is greater.” Finally, Davis agreed not to file any 28 U.S.C. § 2255 motion or other collateral attack

on his conviction or sentence, unless based on claims of ineffective assistance of counsel or

prosecutorial misconduct.

       In January 2017, the district court held a change-of-plea hearing and accepted Davis’ guilty

plea. During the hearing, the parties withdrew a prior signed plea agreement before introducing

their final signed agreement. The district court then placed Davis under oath and confirmed he

was competent, wished to enter a guilty plea, and understood the constitutional rights he was

waiving by pleading guilty. The district court also reviewed Davis’ understanding of the charge

against him, the factual basis for that charge, and the possible sentence and other consequences he

faced as a result. These consequences included, under the parties’ plea agreement, a waiver of his

appellate rights. Davis raised no objections to, or concerns about, the plea agreement.

       A presentence report (PSR) was prepared. Based on the amount of crack cocaine agreed

to by the parties, the PSR assigned a base-offense level of 34 under USSG § 2D1.1(a)(5). Because

Davis had “at least two prior felony convictions of either a crime of violence or a controlled

substance offense,” the PSR found he was a career offender under USSG § 4B1.1(b), with an

offense level of 37. After a three-level reduction for acceptance of responsibility, see USSG

§ 3E1.1(a), (b), Davis’ total offense level became 34. That offense level, coupled with a criminal

history category of VI due to his career offender status, yielded a Guidelines range of 262 to 327

months. Defense counsel filed several objections to the PSR, including to the career offender

classification and the resulting criminal history category of VI, but the objections were overruled.




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No. 17-5864, United States. v. Davis


       At sentencing, the Government requested a bottom-of-the-Guidelines sentence of

262 months. Defense counsel agreed, but also pointed to facts that might justify a downward

departure. Davis was then given an opportunity to address the district court. During this

conversation, he raised concerns about two prior convictions noted in the PSR, one from

Connecticut and the other from Tennessee. The district court confirmed during the hearing, with

the appropriate state court, that the Connecticut conviction was indeed correct, and stated it

“wo[uld]n’t even consider” the Tennessee conviction. The district court and defense counsel also

explained to Davis that these prior convictions had no impact on his Guidelines range due to his

career offender status based on other prior convictions. Finally, Davis raised concerns about

language included in the original, withdrawn plea agreement. His counsel confirmed that this

language was not in the final plea agreement.

       After addressing Davis’ concerns, the district court sentenced him to 262 months of

imprisonment, followed by a supervised-release term of ten years. A forfeiture order for $212,000

was also entered.

                                          DISCUSSION

       Davis challenges the validity of his guilty plea, arguing the plea was not knowing and

voluntary because he exhibited reluctance to enter the plea and “in one instance . . . expresse[d]

confusion as to what he pled guilty to.” He further contends that his sentence is unconstitutional

because the Government’s case “lack[ed] credibility” and was “a tall-tale designed to skirt” the

Fair Sentencing Act (FSA) requirements.1 The Government responds that Davis waived his right

to challenge his conviction and sentence through a valid plea agreement. Further, even if he had



       1
        Davis also raised an ineffective assistance of counsel claim in his opening brief, but he
subsequently withdrew that challenge.
                                                -4-
No. 17-5864, United States. v. Davis


not, the Government argues Davis’ challenge to his sentence is meritless because he admitted to

conspiring to distribute, and personally distributing, more than the minimum drug quantities under

the FSA.

       “We apply de novo review to 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). The law is “well settled” that a “[c]riminal defendant[] may waive [his] right to appeal as

part of a plea agreement so long as the waiver is made knowingly and voluntarily.” United States

v. Beals, 698 F.3d 248, 255 (6th Cir. 2012) (citation omitted). When a defendant does so, “[o]nly

challenges to the validity of the waiver itself will be entertained on appeal.” United States v. Toth,

668 F.3d 374, 377 (6th Cir. 2012).

       A guilty plea is valid if entered knowingly, voluntarily, and intelligently. Bousley v. United

States, 523 U.S. 614, 618 (1998). Federal Rule of Criminal Procedure 11 “is meant to ensure that

the district court is satisfied that the defendant’s plea is knowing, voluntary, and intelligent.”

United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005). Under Rule 11, the district court must

verify that the defendant is pleading voluntarily and that he “understands his . . . applicable

constitutional rights, the nature of the crime charged, the consequences of the guilty plea, and the

factual basis for concluding that [he] committed the crime charged.” Id. at 378–79. Because Davis

did not object to a Rule 11 violation at the change-of-plea hearing, we review his guilty plea for

plain error. United States v. Vonn, 535 U.S. 55, 59 (2002). To succeed, Davis must show an error

occurred and there is a reasonable probability that, but for the error, he would not have entered the

plea. United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

       Davis does not identify any specific Rule 11 provision that the district failed to comply

with, and review of the record confirms no error. This includes Rule 11(b)(1)(N), which provides


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No. 17-5864, United States. v. Davis


that a district court must inform the defendant about, and make sure the defendant understands,

“the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the

sentence.” Although Davis asserts that he lacked “the voluntariness required for an acceptable

plea agreement” because he “exhibited more than a ‘second thought’ or ‘frustration’ with the

consequences of pleading guilty,” this assertion is unsupported. Notably, Davis fails to identify

any portion of the plea colloquy supporting his position. Upon independent review, the only

conceivable “reluctance” Davis displayed was in response to the district court’s question as to

whether he was “plead[ing] guilty because [he is] in fact guilty.” Davis initially responded “[n]o

and yes.” But the district court repeated, “Are you guilty or not?” And Davis responded, “Yes,

your Honor.” This exchange does not provide a basis to conclude the district court erred in

accepting the guilty plea, much less committed plain error. See United States v. Simpson,

81 F. App’x 524, 525–27 (6th Cir. 2003) (holding that a guilty plea was knowing and voluntary

despite some “ambivalence” by the defendant).

       The other instances of “confusion” Davis identifies occurred during the sentencing hearing,

long after the guilty plea was accepted. As discussed, Davis contested two prior convictions

included in the PSR, but these convictions were not used to enhance his sentence and had no

bearing on his Guidelines range. Davis also raised concern about a statement in the withdrawn

plea agreement, but this statement was removed from the final agreement. The record does not

demonstrate that Davis was “confus[ed] as to what he pled guilty to and didn’t sufficiently

understand what was going on.” He did not contest any of the facts concerning the crack-cocaine

conspiracy, including the drug quantity involved. Nor did he suggest he desired to withdraw his

guilty plea. In fact, while discussing these concerns, Davis stated, “I’m here to stand up and take




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No. 17-5864, United States. v. Davis


responsibility for what I did.” In short, there is no basis to conclude that the plea was not knowing

and voluntary. Davis is therefore barred from appealing his conviction.

       The terms of the plea agreement also bar Davis from appealing his sentence. He agreed

not to appeal his conviction or sentence unless he received a sentence above the Guidelines range

“determined by the Court” or the mandatory minimum “deemed applicable by the Court,

whichever is greater.” “Plea agreements are to be enforced according to their terms.” United

States v. Moncivais, 492 F.3d 652, 662 (6th Cir. 2007). Davis received a Guidelines sentence, and

he makes no argument that his current challenge is excluded from the waiver provision.           He

waived his opportunity to contest the drug quantity involved in this case when he knowingly

stipulated to the quantity in the plea agreement and waived his right to appeal.

       Finally, nothing in the record supports Davis’ assertion that the district court “ha[d]

reservation[s] about the credibility of the amounts of drugs alleged to have been sold.” While the

district court declined to impose a fine because Davis did not “have the ability to pay,” it entered

a forfeiture order for $212,000—the estimated drug proceeds for 9,000 grams of crack cocaine.

       For these reasons, this appeal is dismissed.




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