               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0491n.06

                                          No. 12-5614
                                                                                       FILED
                         UNITED STATES COURT OF APPEALS                            May 15, 2013
                              FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )
                                                )
JOE TYUS,                                       )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
       Defendant-Appellant.                     )   WESTERN DISTRICT OF TENNESSEE



       Before: CLAY and COOK, Circuit Judges; OLIVER, District Judge*


       COOK, Circuit Judge. Joe Tyus, who pleaded guilty to possession with the intent to

distribute more than five grams of cocaine base, appeals his 151-month sentence in light of the

Supreme Court’s recent ruling that the more lenient penalties of the Fair Sentencing Act of 2010

(FSA) apply retroactively to post-enactment sentences. Dorsey v. United States, 132 S. Ct. 2321,

2326 (2012). Citing his plea agreement’s appellate waiver, the government moved to dismiss the

appeal. A motions panel of this court referred the motion, which we denied to allow consideration

with the merits. In its merits brief, the government renews its appellate-waiver argument and

alternatively asserts that Tyus’s unpreserved FSA claim fails plain-error review. We begin with

the waiver.



       *
         The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 12-5614
United States v. Tyus


                                                   I.


        Our cases recognize that a defendant “may waive any right, even a constitutional right, by

means of a plea agreement.” United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (citation

omitted). If the defendant knowingly and voluntarily enters a plea agreement containing a waiver

of appellate rights, we will enforce the waiver according to its terms. E.g., United States v. Toth, 668

F.3d 374, 378 (6th Cir. 2012). This rule reflects the mutually beneficial possibilities of the waiver

as a plea-bargaining tool: the defendant may use it to seek concessions, and the government hopes

to use it to avoid unnecessary appellate litigation. Id. at 379.


        Tyus does not contest his knowing and voluntary waiver of his appellate rights. (See

Appellant Br. at 17 (conceding that “[t]he record herein does demonstrate that the district court

explained the appellate waiver contained in Mr. Tyus’ Plea Agreement extensively”).) Rather, he

argues that Dorsey renders his plea unknowing, because the district court failed to use the FSA’s

reduced penalties.1 If it had, Tyus claims that he would have faced no mandatory minimum and his

statutory maximum would have been twenty years, see 21 U.S.C. § 841(b)(1)(C), and his guidelines

range as a career offender would have been 151–188 months, see U.S.S.G. ch. 5, pt. A (range for

adjusted offense level of 29 and criminal history category of VI). Instead, relying on the pre-FSA

penalties, the district court based his sentence on a five-year mandatory minimum, a forty year


       1
        It appears that the district court relied on our then-applicable precedent, which held that the
FSA did not apply retroactively to pre-enactment crimes. United States v. Carradine, 621 F.3d 575,
580 (6th Cir. 2010).

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United States v. Tyus


statutory maximum, and a guidelines range of 188–235 months (offense level 31, criminal history

VI).


       Notwithstanding its use of the pre-FSA penalties, the district court issued (what it

perceived as) a below-guidelines sentence of 151 months. This 37-month downward variance, Tyus

argues, justifies remanding to see if it would grant a further variance from the FSA-modified

guidelines range. Indeed, a panel of this court made that very inference in remanding another post-

FSA crack sentencing for reconsideration in light of Dorsey. United States v. Boyd, 478 F. App’x

323, 324 (6th Cir. 2012) (per curiam) (pointing to the district court’s downward variance from the

pre-FSA guidelines range, and finding that “the district court, now aware of the subsequent decision

in Dorsey, might well conclude that an additional variance is justified”).


       Yet, as the government correctly points out, an important fact distinguishes this case from

Boyd: Tyus waived his appellate rights as part of his plea agreement. If knowing and voluntary, we

will enforce the waiver. Toth, 668 F.3d at 377–78; see also United States v. Fleming, 239 F.3d 761,

764–65 (6th Cir. 2001) (enforcing the appellate waiver of a knowing and voluntary plea, despite the

district court’s mistaken advice that the defendant could appeal his sentence).


       Tyus’s current Dorsey-based objection to the district court’s use of pre-FSA penalties falls

under the rubric of Federal Rule of Criminal Procedure 11(b)(H) and (I), which requires the court

in taking a plea to advise the defendant of his statutory maximum and minimum sentences. Though

we generally review a court’s Rule 11 mistakes for harmless error, Fed. R. Crim. P. 11(h), we review

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United States v. Tyus


this claim for plain error because Tyus failed to object below, United States v. Martin, 668 F.3d 787,

791 (6th Cir. 2012). As applied to appeals challenging the knowing and voluntary nature of a plea,

plain-error review places the “burden . . . on the defendant to show that but for the error, he would

not have pleaded guilty.” Id. Appellant does not do so.


        He does not suggest that the sentencing ranges used by the government and the district court

led him to accept a plea he otherwise would have rejected. Nor does he claim to have pleaded guilty

with the expectation of a lower sentencing range, only to be ambushed at sentencing with a greater

sentence. Cf. Hart v. Marion Corr. Inst., 927 F.2d 256, 259 (6th Cir. 1991) (granting conditional

habeas relief where the court advised the defendant of a maximum 15-year term, instead of the actual

30–75-year range). In fact, by asking only for resentencing (Appellant Br. at 25), he does not contest

the plea at all.


        We may not presume plain error, especially where the defendant’s sentence falls within the

proper statutory and guidelines ranges despite the court’s Rule 11 errors. See, e.g., United States v.

Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (explaining that plain-error review requires the

defendant to show an “obvious or clear” error that “affected [his] substantial rights” and “the

fairness, integrity, or public reputation of the judicial proceedings”); United States v. Bradley, 400

F.3d 459, 463–66 (6th Cir. 2005) (enforcing plea-agreement appellate waiver, despite appellant’s

Booker challenge to the district court’s strict application of the sentencing guidelines, explaining that

“a voluntary plea of guilty intelligently made in the light of the then applicable law does not become


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United States v. Tyus


vulnerable because later judicial decisions indicate that the plea rested on a faulty premise” (citation

omitted)). Consequently, we reject Tyus’s challenge to his knowing and voluntary entry of the plea,

and we will enforce the terms of the plea agreement.


                                                  II.


        Looking to the terms of the appellate waiver, Tyus expressly “waive[d] all rights conferred

by 18 U.S.C. § 3742 to appeal any sentence imposed,” with three exceptions: (1) if the “sentence

exceeds the maximum permitted by statute,” (2) if the sentence “is an upward departure from the

guideline range that the court establishes at sentencing,” and (3) if the government appeals the

sentence. (R. 24, Plea Agreement ¶ 8.) None of these exceptions allow appellant’s FSA arguments.


        Tyus suggests in passing that the government’s violation of the plea agreement should enable

his appeal. Specifically, he points to the government’s argument for a guidelines sentence during

the sentencing hearing, contrary to the parties’ joint agreement to argue for a low-end guidelines

sentence. (See R. 24, Plea Agreement ¶ 7.) But he acknowledges that he breached this plea-

agreement term first by arguing for a variance. (Appellant Br. at 21 n.3.) In any event, the relevant

plea agreement term provides that the “[f]ailure of the district court to sentence the Defendant at the

[recommended] lowest end of the applicable guideline range is not a basis for the Defendant to

withdraw [the] guilty plea or to appeal [the] sentence.” (R. 24, Plea Agreement ¶ 7 (emphasis

added).) We do not view this limited breach, instigated by defendant, as affecting the appellate

waiver or the remainder of the plea agreement.

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United States v. Tyus


                                           III.


       Because the plea agreement’s appellate waiver forecloses appellant’s arguments, we

DISMISS the appeal.




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