                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0128n.06

                                       Case No. 14-5111
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                         Feb 12, 2015
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE EASTERN DISTRICT OF
JULIUS MAURICE KNOX,                               )       KENTUCKY
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )

                                         OPINION

       BEFORE: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. A defendant waives the argument that he does not qualify

as a career offender by explicitly agreeing before the district court that he does qualify as one.

Because Julius Knox waived his only appellate argument, we affirm his sentence.

       On October 21, 2010, Knox sold a little over a third of a gram of crack cocaine in a

Frisch’s Big Boy bathroom in Kentucky. Unhappily for Knox, the buyer was a confidential

informant, and the sale led to Knox’s federal indictment for knowingly distributing a controlled

substance under 21 U.S.C. § 841(a)(1). Knox pled guilty and awaited his sentence.

       Prior convictions can affect the length of a sentence, and this was not Knox’s first run-in

with the law. Between the ages of eighteen and twenty-six, he faced one or more charges twenty
Case No. 14-5111
United States v. Knox
separate times, and the government convicted him in fourteen of the incidents. R. 43 at 5–11

(Presentence Report). A probation officer determined that at least two of those prior convictions

were “felony convictions of either a crime of violence or a controlled substance offense,”

U.S.S.G. § 4B1.1(a), meaning that, when coupled with his current conviction, Knox was a

“career offender.” R. 43 at 11. The career-offender designation put Knox’s guidelines’ prison

term at between 188 and 235 months (about 15½ to 19½ years). Neither party objected to the

designation or suggested sentence.

       Before issuing a sentence, the district court heard from Knox’s counsel, who agreed that

the guidelines were “calculated correctly,” R. 49 at 3, and that Knox “qualifies as a Career

Offender.” R. 35 at 2. Rather than challenge that designation, he asked the court to reduce the

sentence to ten years for equitable reasons. The court accepted the first part of the argument

(that the career-offender designation applied) but rejected the second part (that Knox’s sentence

should be ten years). It followed the guidelines and sentenced Knox to 198 months (16½ years)

in prison. Neither side objected to the sentence.

       Knox appealed with new counsel, raising only one issue: He does not qualify as a career

offender. Because that is directly contrary to the previous concession that he does qualify as one,

e.g., R. 35 at 2, the government argues that Knox waived this argument. We agree.

       Waiver is the “intentional relinquishment or abandonment of a known right.” United

States v. Olano, 507 U.S. 725, 733 (1993). A defendant waives an argument that he does not

qualify for a sentencing enhancement by “explicitly agree[ing]” that he does qualify. United

States v. Aparco–Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002). Such explicit agreement occurs

when the defendant expresses a “plain, positive concurrence” with applying the enhancement,

United States v. Mabee, 765 F.3d 666, 671–73 (6th Cir. 2014), like when he “agree[s] in open



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United States v. Knox
court” that he qualifies for a designation that increases his sentence. Aparco-Centeno, 280 F.3d

at 1088. After agreeing, the defendant cannot make the opposite argument on appeal; the

argument is waived and we do not review it. Id.; see United States v. Hall, 373 F. App’x 588,

591 (6th Cir. 2010).

       Knox waived his argument. His counsel explicitly agreed that Knox “qualifies as a

Career Offender.” R. 35 at 2. Knox now recognizes as much: “[His counsel] repeatedly

conced[ed] and/or agree[d] that Mr. Knox was a ‘career offender.’” Reply Br. 2. His counsel

even conceded specifics that directly undermine Knox’s appellate argument. Knox argues here

that he is not a career offender because one of the prior felonies needed to make him one—

felony assault under extreme emotional disturbance (a Kentucky crime)—is not a “crime of

violence.” Appellant Br. 12–14. Yet his counsel below conceded that the same crime counts as

“a proper predicate” felony under U.S.S.G. § 4B1.1(a)—meaning it is a crime of violence. R. 49

at 13–14; see id. at 3. That is more than enough explicit agreement to constitute waiver.

       Knox responds with refreshing candor, agreeing that the “waiver problems” in his appeal

mean that we would not ordinarily review his argument. Reply Br. 4. But, he says, we should

review his sentence for plain error—in the “interests of justice.” Id. (citing Aparco-Centeno, 280

F.3d at 1088). Justice was done here, however, because the district court did not err, plainly or

otherwise.

       Plain-error review presents a steep hill to climb in any case. That hill becomes a

mountain here because we have held that the Kentucky felony “assault under extreme emotional

disturbance”—the very crime Knox challenges—is “a violent felony under the [Armed Career

Criminal Act].” United States v. Colbert, 525 F. App’x 364, 370 (6th Cir. 2013). And the

mountain becomes insurmountable because we treat violent felonies under the Armed Career



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United States v. Knox
Criminal Act the same as crimes of violence under the guidelines. United States v. Ford, 560

F.3d 420, 421 (6th Cir. 2009). Colbert thus squarely governs, at least for plain-error review.

That Colbert is unpublished does not matter to the plain-error analysis: Because there was no

Supreme Court or published Sixth Circuit case law to the contrary, the district court did not

plainly err in following “the law, albeit unpublished, of this circuit.” United States v. Crouch,

288 F.3d 907, 910 (6th Cir. 2002); see United States v. Woodruff, 735 F.3d 445, 450 (6th Cir.

2013). And even if Colbert were plainly wrong, now is not the time for us to change course: We

may not “fashion a new rule [on plain-error review] and then apply it to determine whether the

district court’s error was plain.” Woodruff, 735 F.3d at 451.

       But Colbert is not plainly wrong, and so Knox would not succeed even if we gave his

claim a fresh look. He relies on Begay v. United States, 553 U.S. 137 (2008), and its progeny in

our circuit to argue that the Kentucky crime of felony assault under extreme emotional

disturbance does not involve the same kind of “purposeful, violent, and aggressive conduct” as

the crimes listed in U.S.S.G. §4B1.2(a)(2). Appellant Br. 13–16. But it does: It requires “the

specific intent” to “cause[] physical injury.” Nichols v. Kentucky, 142 S.W.3d 683, 690 & n.13

(Ky. 2004); see Ky. Rev. Stat. Ann. § 508.040 & cmt. (1974); accord Colbert, 525 F. App’x at

368. So it is a “crime of violence” no matter how you cut it. U.S.S.G. 4B1.2(a)(1) & (2).

       For these reasons, we affirm.




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