                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0506n.06

                                           No. 08-1911                                 FILED
                                                                                    Jul 21, 2009
                          UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES of AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
ISSA ZUMOT,                                      )   EASTERN DISTRICT OF MICHIGAN
                                                 )
       Defendant-Appellant.                      )



       Before: MCKEAGUE and WHITE, Circuit Judges, and MARBLEY, District Judge.*

       MARBLEY, District Judge. Defendant-Appellant Issa Zumot (“Zumot”) pleaded guilty to

one count of conspiracy to possess or distribute a listed chemical, or having reasonable cause to

believe that the chemical would be used to manufacture a controlled substance. The district court

sentenced him to 168 months’ imprisonment. Zumot appeals, contending that the district court failed

at sentencing to consider properly his motion for downward departure based upon his age, infirmity,

and poor health. Because Zumot entered into a constitutionally valid waiver of appellate

review—knowingly and voluntarily waiving his right to appeal—we are without jurisdiction to

entertain the instant case and, accordingly, DISMISS Zumot’s appeal.




       *
        The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-1911
USA v. Zumot

                                       I. BACKGROUND

       On August 13, 2002, Zumot was indicted by a federal grand jury on two counts. Count One

charged him with conspiracy to possess or distribute a listed chemical knowing, or having reasonable

cause to believe, that the chemical would be used to manufacture a controlled substance, in violation

of 21 U.S.C. §§ 841(c)(2) and 846. Count Two charged him with possession or distribution of a

listed chemical knowing, or having reasonable cause to believe, that the chemical would be used to

manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2).

       On February 25, 2004, pursuant to a Rule 11 Plea Agreement (the “Plea Agreement”), Zumot

pleaded guilty to Count One of the Indictment in the United States District Court for the Eastern

District of Michigan. The Plea Agreement specifically advised Zumot that he was waiving his right

to appeal his sentence and conviction, stating:

   Defendant’s waiver of appeal rights. If the court imposes a sentence equal to or less than the
   maximum sentence described in ¶ 2 of this agreement,1 defendant waives any right he may
   have to appeal his conviction or sentence, including any right under 18 U.S.C. § 3742 to
   appeal on the grounds that the sentence was imposed as a result of an incorrect application
   of the guidelines.

(Record on Appeal (“ROA”) Vol. I, pp. 117, ¶ 7.)

       During the plea colloquy, the district court discussed Zumot’s constitutional rights, and

specifically asked him questions about the Plea Agreement, including whether he had any questions

before he signed it, whether he reviewed the Plea Agreement with his counsel, and whether he



       1
        Paragraph two of the Plea Agreement specified that the parties agreed that the sentencing
Guidelines range was 168-210 months’ imprisonment, and that the Government would recommend
that appellant be sentenced to no more than 190 months’ imprisonment.

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No. 08-1911
USA v. Zumot

understood it, signed it, and agreed to its provisions. Zumot affirmatively answered each of those

questions and advised the court that everything had been explained to him.

       The district court accepted Zumot’s guilty plea, and scheduled a sentencing for June 17,

2004. On June 17, 2004, however, Zumot failed to appear for sentencing. Four years later, Zumot

applied for a passport from the United States Embassy in Jordan for his return to the United States.

On April 1, 2008, Zumot was arrested upon his return to the United States.

       On June 24, 2008, Zumot’s sentencing hearing was held. At the hearing, defense counsel

made an oral motion for a downward departure from the 168-210 months sentencing Guidelines

range, pursuant to USSG § 5H1.4, based upon Zumot’s physical impairments. Zumot relied upon

the physical impairments which were outlined in his original Presentence Report (the “PSR”), as

well as those noted in an updated PSR.2 In addition, Zumot listed numerous medications he was

taking. Finally, Zumot emphasized that he was in his sixties.

       In opposition to the motion, government counsel argued that “the majority of . . . [Zumot’s]

physical problems [we]re old and . . . [did not] prevent[] him from committing the instant offenses

for which he stands convicted.” (ROA Transcript Vol. II, p. 7.) Government counsel also noted that

although the court had the discretion to grant a downward departure based upon an individual

defendant’s physical condition under USSG § 5H1.4, “the Section states that physical condition is


       2
        Included among those infirmities were problems starting back in 1976, when he had surgery
to remove ulcers. In 1978, he had treatment for chest pains. He had four or five strokes in the past
30 years, the most recent being in 2002. And he suffered from angina pectoris (a condition involving
blockage of the heart), hyperlipidemia, hypertension, asthma, and tuberculosis. Zumot stated that his
most significant concern was related to his heart, and stated that he had had two heart attacks and
underwent a surgical procedure to alleviate heart artery blockage in 2003.

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No. 08-1911
USA v. Zumot

not ordinarily relevant in determining whether or not a departure may be warranted.” (Id.) Finally,

Government counsel concluded that there was “no evidence in the record that establishes that

[Zumot] is seriously infirm[] or that he has an extraordinary impairment. Even if he did, the decision

whether or not to depart downward would still be within the discretion of th[e] Court.” (ROA

Transcript Vol. II, pp. 7-8.)

        After noting that Zumot “was a fugitive for four years . . . with this plethora of health issues

outlined in the [PSR],” the district court found that no information had been provided to the court

which “outlines . . . Zumot’s health and medical treatment . . . for the last four years. There’s no

information provided to the Court that [his] list of medications [wa]s current . . . [or] if he . . . had

any medical treatment, surgeries, et cetera while he was a fugitive.” (ROA Transcript Vol. II, 10.)

Thus, the court ruled that it was “hard-pressed to make a determination that his health issues are of

such a concern that a downward departure would be warranted under the Guidelines.” (Id.) The court

determined, “given the absence of information in th[e] record for the last four years, the Court is not

prepared to give a downward departure” from the Guidelines (Id.) The court, however, took into

account Zumot’s past medical history and opined that his history “influence[d] the Court to sentence

Mr. Zumot to the low end of the Guideline.” (ROA Transcript Vol. II, pp. 10-11.) The court

sentenced Zumot to 168 months imprisonment, which was at the bottom of the applicable sentencing

Guidelines range.

        Zumot appeals on the ground that the district court failed at sentencing to consider properly

Zumot’s motion for downward departure based upon his age, infirmity, and poor health.



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No. 08-1911
USA v. Zumot

                                        II. JURISDICTION

       The threshold issue before this Court is whether we may properly exercise jurisdiction over

this appeal. Zumot asserts that we may reach the merits of his arguments pursuant to 28 U.S.C. §

1291, which provides, in pertinent part, that the courts of appeals shall have jurisdiction over appeals

from all final decisions of the district courts. Further, in accordance with 18 U.S.C. § 3742(a)(1) and

(2), a defendant may file notice of appeal in the district court for review of an otherwise final

sentence if the sentence was imposed in violation of law or was imposed as a result of an incorrect

application of the sentencing guidelines. The government asserts that pursuant to the Plea

Agreement, Zumot voluntarily and knowingly waived the right to appeal his sentence; therefore, the

appeal should be dismissed because this Court has no jurisdiction to consider it.

                                  III. STANDARD OF REVIEW

       In determining whether a defendant validly waived the right to appeal his sentence in a plea

agreement, we apply a de novo standard of review. United States v. Smith, 344 F.3d 479, 483 (6th

Cir. 2003). If we determine we have jurisdiction to review the reasonableness of Zumot’s sentence,

we review it under an abuse-of-discretion standard. United States v. Jones, 489 F.3d 243, 250 (6th

Cir. 2007). A sentence is procedurally unreasonable if the district court:

       fails to consider the applicable Guidelines range or neglects to consider the other factors
       listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an
       appropriate sentence without such required consideration. . . . Furthermore, when a
       defendant raises a particular argument in seeking a lower sentence, the record must
       reflect both that the district judge considered the defendant’s argument and that the judge
       explained the basis for rejecting it.




                                                  -5-
No. 08-1911
USA v. Zumot

Id. at 250-51 (internal citations and quotations omitted). A sentence is substantively unreasonable

if the district court, “selects the sentence arbitrarily, bases the sentence on impermissible factors,

fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any

pertinent factor.” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006). We accord a

presumption of reasonableness to sentences that fall within the Guidelines ranges. United States v.

Williams, 436 F.3d 706, 708 (6th Cir. 2006).

                                      IV. LAW & ANALYSIS

        The government contends that Zumot waived his right to appeal his 168-month sentence

imposed by the district court because Zumot’s Plea Agreement contained an appellate-waiver

provision in which Zumot agreed to waive his right to appeal a within Guidelines sentence. The

government asserts this waiver was executed knowingly and voluntarily.

        We have established that “any right, even a constitutional right, may be surrendered in a plea

agreement if that waiver was made knowingly and voluntarily.” United States v. Wilson, 438 F.3d

672, 673 (6th Cir. 2006). To help ensure that an appellate waiver is made “knowingly and

voluntarily,” a district court “must inform the defendant of, and determine that the defendant

understands . . . the terms of any plea-agreement provision waiving the right to appeal. . . . “ Fed. R.

Crim. P. 11(b)(1)(N). Federal Rule of Criminal Procedure 11, however, does not require a district

court specifically to ask a defendant whether he understands the terms of a waiver provision; rather,

it only requires a court to “determine” that the defendant understands the terms of such provision.

United States v. Broom, 207 F. App’x 565, 569 (6th Cir. 2006); see also United States v. Keesee, 275

F. App’x 4888, 493 (6th Cir. 2008) (finding district court’s failure specifically to mention appellate

                                                  -6-
No. 08-1911
USA v. Zumot

waiver did not rise to plain error when there were other indicia of voluntariness and other indicia that

defendant had reviewed his plea agreement); Wilson, 428 F.3d at 674 (same).

        A defendant is sufficiently informed that he has waived his right to appeal if the prosecutor,

rather than the district court, summarizes the terms of the plea agreement and specifically explains

that the defendant agreed to waive his right to appellate review. United States v. McGilvery, 403 F.3d

361, 362 (6th Cir. 2005). In McGilvery, the district court “entrusted the responsibility of

summarizing the plea agreement to the government, and the government explained that [defendant]

agreed to waive his appellate rights on the condition that his sentence did not exceed twenty-four

months.” Id. at 363.

        After the prosecutor summarized the terms of the Plea Agreement, the McGilvery district

court ascertained that the defendant understood the terms as described by the prosecutor. Id.; see also

United States v. Shearer, 301 F. App’x 450, 454 (6th Cir. 2008) (quoting Wilson, 438 F.3d at 674)

(“Rule 11(b) is not violated where the prosecutor, rather than the court, ‘fully explain[s]’ the plea

‘to defendant in open court.’”). It is not required that the district court specifically ask the defendant

about the waiver provision; instead, the court can just inquire whether the defendant understood the

plea agreement as described. See Shearer, 301 F. App’x at 454 (quoting United States v. Sharp, 442

F.3d 946, 949 (6th Cir. 2006)) (finding that a district court’s “‘failure to inquire specifically as to

whether [the defendant] understood the appellate-waiver provision [is] not erroneous,’ as long as the

provision is ‘adequately explained . . . in open court”); Keesee, 275 F. App’x at 493 (asking if a

defendant understands his plea agreement and if he has any questions about his plea agreement is

sufficient to show the waiver was made knowingly).

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No. 08-1911
USA v. Zumot

       In this case, Zumot signed a Plea Agreement, containing an appellate-waiver provision.

Zumot indicated to the court that no one had made any promises to him to induce him to plead guilty

and no one had threatened him in order to induce him to plead guilty. The court did not specifically

ask Zumot whether he understood the terms of the appellate-waiver. The court asked him, however,

if he had any questions about the Plea Agreement before he signed it, to which he answered that

everything had been explained to him. The court had government counsel inform Zumot that the

sentencing Guidelines range was 168-210 months. Zumot told the court that he understood the

Guidelines range for the sentence. The Court also asked government counsel to summarize the terms

of the Plea Agreement. In summarizing the Plea Agreement, government counsel explained that “the

Defendant agrees in Paragraph Seven that if the Court imposes a sentence equal to or less than the

maximum sentence described in Paragraph Two of the Agreement, that the Defendant will waive all

his rights.” (ROA Transcript Vol. I, pp. 15-16.)3 The court asked if Zumot understood what

government counsel just summarized, specifically inquiring, “Is that your understanding of the major

provisions of the Rule 11 Agreement that you signed?” (ROA Transcript Vol. I, p. 16.) Zumot

answered affirmatively. The court found on the basis of what was testified to at the plea hearing that

Zumot’s plea was made knowingly and voluntarily.

       We find, therefore, that the appellate-waiver in Zumot’s plea agreement is enforceable,

divests this Court of jurisdiction, and operates to prevent this Court from reaching the merits of his

claim that the district court erred in denying his request for a downward departure in sentencing



       3
           The maximum sentence was 190 months.

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No. 08-1911
USA v. Zumot

based upon his age, infirmity, and poor health. See also, e.g., Shearer, 301 F. App’x at 454 (holding

that because the appellate-wavier provisions were valid, “we enforce them and refrain from

reviewing the reasonableness of the defendants’ sentences”); United States v. Calderon, 388 F.3d

197, 201 (6th Cir. 2004) (dismissing the appeal because the defendant waived his right to appellate

review of his sentence); Keesee, 275 F. App’x at 494 (dismissing the appeal for lack of jurisdiction

because the defendant waived his right to appeal and refusing to reach the merits of the defendant’s

arguments); Broom, 207 F. App’x at 570 (declining to address the merits of the defendant’s claim

that his sentence was unconstitutional because he had validly waived his right to appeal); Sharp, 442

F.3d at 954 (finding the appellate-waiver provision in the plea agreement prevented the Court from

reaching the merits of defendant’s restitution claim).4

                                        V. CONCLUSION

       For the foregoing reasons, we DISMISS Zumot’s appeal for lack of jurisdiction.




       4
         Furthermore, a district court’s decision to not depart downward from the sentencing
Guidelines is normally unappealable, unless the court believed that it lacked any authority to depart
downward. United States v. Jones, 63 F. App’x 826, 831 (6th Cir. 2003) (citing United States v.
Prince, 214 F.3d 740, 766 (6th Cir. 2000)); see United States v. Brown, 66 F.3d 124, 128 (6th Cir.
1995) (citing United States v. Hamilton, 949 F.2d 190, 192-93 (6th Cir. 1991)) (finding “a lower
court’s informed decision not to depart from a valid guideline range is not reviewable”). “If the
court’s refusal to depart stemmed from its legal conclusion that the circumstances argued by the
defendant was not a valid reason for departure, [however,] the decision is reviewable.” Prince, 214
F.3d at 766 (citing United States v. Ford, 184 F.3d 566, 585 (6th Cir. 1999)). In this case, the record
reflects that the district court knew it had authority to grant the departure sought by Zumot, but
simply chose not to do so because the facts did not warrant it.

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No. 08-1911
USA v. Zumot

       WHITE, Circuit Judge (concurring). Because I am not convinced that the waiver was

procedurally valid,1 I would decide this case on the merits.

       Zumot’s lone argument on appeal is that the district court’s decision to deny his request for

a downward departure based on his age, infirmity and health was erroneous given the court’s reliance

on four-year-old medical information about him. Zumot asserts that without complete and up-to-date

information, the district court lacked the necessary foundation to reach a reasoned and reasonable

determination regarding whether he suffered from exceptional impairments.

       Zumot acknowledges that he did not object to the original PSR (prepared in 2004), or to the

letter updating the PSR (prepared in 2008). Although at sentencing Zumot made arguments based

on his medical condition, he supplied no updated documentation and did not request an opportunity

to do so. Thus, our review is for plain error. United States v. Bostic, 371 F.3d 865, 873 (6th Cir.

2004), United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008).

       Zumot cites Bostic in support of his argument. This court noted in Bostic,

       the district court effectively granted an eleven-level downward departure based upon
       Bostic’s age and infirmities. As Tocco [United States v. Tocco, 200 F.3d 401 (6th
       Cir. 2000),] makes clear, age alone cannot justify a substantial downward departure.
       Additionally, the district court granted the downward departure based only upon one
       letter from Bostic’s treating physician and the Physical Condition section of the PSR.
       Although numerous “physical infirmities” might justify a downward departure,
       Johnson [United States v. Johnson, 71 F.3d 539 (6th Cir. 1995),] and Tocco indicate
       that a doctor’s letter and the “Physical Condition” section of the PSR are not
       sufficient evidence to justify a downward departure. Finally, the district court made


       1
         The plea hearing transcript is clear that neither the district court nor the prosecutor
referred to or informed Zumot, or determined that Zumot understood, that the plea-agreement
included a waiver of the right to appeal. Fed. R. Crim. Pro. 11(b)(1)(N). Zumot spoke through
an interpreter.

                                               -10-
No. 08-1911
USA v. Zumot

         no findings regarding whether Bostic’s case is extraordinary, whether the BOP could
         accommodate Bostic, and whether home confinement would be equally efficient and
         less costly. Therefore, the district court erred by granting an eleven-level departure
         without sufficient evidence. If upon remand the evidence shows that Bostic’s case
         warrants a departure, the district court must still find that the reasons justify the
         magnitude of the departure selected.

Bostic, 371 F.3d at 875. In a footnote, the Bostic court noted:

         As in Johnson and Tocco, we think it is appropriate for the district court [on
         resentencing] to “obtain independent and competent medical evidence to determine
         the extent of [defendant’s] infirmities and the prison system’s ability or inability to
         accommodate him.” United States v. Tocco, 200 F.3d 401, 435 (6th Cir. 2000)
         (citing United States v. Johnson, 71 F.3d 539, 545 (6th Cir. 1995).

         Bostic also made clear that “[u]nder the sentencing guidelines, age and health are disfavored

factors that the district court may use as bases for granting a downward departure only in exceptional

circumstances.” Bostic, 371 F.3d at 875, citing U.S.S.G. §§ 5H1.1 and 5H1.4. It is apparent that

the district court followed Bostic in reaching the conclusion that Zumot had not made a sufficient

showing to warrant a departure based on his age, infirmity, and health.

         Lastly, Zumot cites no case, and my research yielded none, that supports that, absent an

objection to the PSR and/or updated PSR, the district court should have sua sponte requested

updated medical information (and adjourned sentencing until such was available.) Bostic does not

address circumstances similar to those presented here. I conclude that Zumot has not shown plain

error.




                                                  -11-
