                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0402n.06
                                                                                            FILED
                                            No. 08-2171
                                                                                       Jun 17, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                          )
                                                   )      ON APPEAL FROM THE
       Plaintiff - Appellee,                       )      UNITED STATES DISTRICT
                                                   )      COURT FOR THE WESTERN
v.                                                 )      DISTRICT OF MICHIGAN
                                                   )
JAMES SHYQUAN FLOWERS,                             )                OPINION
                                                   )
      Defendant - Appellant.                       )
______________________________


Before: BATCHELDER, Chief Judge; BOGGS and WHITE, Circuit Judges.


       HELENE N. WHITE, Circuit Judge. Defendant James Flowers appeals the 144-month

within-Guidelines sentence imposed following his guilty plea, arguing that the plea agreement’s

appellate-waiver provision does not preclude this appeal and should not be enforced because of

ineffective assistance of counsel, that his sentence is procedurally unreasonable because the district

court incorrectly calculated the Guidelines range and failed to assess the value of his substantial

assistance, and that the court abused its discretion in rejecting his pro se motion for a downward

departure or a variance. We dismiss Flowers’s appeal pursuant to his plea agreement.

                                                  I

       A grand jury returned an indictment charging Flowers with one count of possession with

intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(iii). Pursuant to a written plea agreement, Flowers pleaded guilty to the sole count of the
indictment. One condition of the plea agreement was that Flowers waive the right to challenge his

sentence on appeal, “except . . . on grounds, preserved at sentencing, that the Court incorrectly

determined the guideline range.” R. 23 [hereinafter Plea Agreement], at 3, ¶ 5B. The plea

agreement also allowed Flowers to file a post-conviction attack, pursuant to 28 U.S.C. § 2255, based

on a claim of ineffective assistance of counsel.

       Flowers’s Presentence Investigation Report (“PSR”) determined that he had an offense level

of 29 and a criminal-history category of V, resulting in a Guidelines range of 140 to 175 months.

Of particular relevance to this appeal, the PSR found that Flowers had served 115 days on an earlier

marijuana-possession offense, which increased his criminal-history level by two points. Counsel

objected in writing, arguing that Flowers in fact received a lesser sentence for this conviction, but

the PSR rejected the argument.

       Prior to his sentencing hearing, Flowers filed a pro se motion for a downward departure or

a variance with an attached letter of allocution, in which he asked the court to consider the 100:1

sentencing disparity between crack- and powder-cocaine offenses, as well as several other factors

under 18 U.S.C. § 3553(a). The magistrate judge rejected this pleading and ordered Flowers to file

all motions and documents through his court-appointed attorney or submit them during his allocution

on the day of sentencing. The court returned Flowers’s motion papers to him by mail, along with

a copy of the order. However, Flowers never received the letter, which was returned to the court as

undeliverable.

       At sentencing, the Government moved for a downward departure pursuant to U.S.S.G. §

5K1.1, on grounds that Flowers provided substantial assistance to the investigation. The district

court granted the motion and reduced Flowers’s offense level to 28, resulting in a Guidelines range


                                                   2
of 130 to 162 months. The court sentenced Flowers within that range, to 144 months of

imprisonment. Flowers raised no objection at the hearing, either through his attorney or in his

allocution.

        On appeal, Flowers challenges the sentence’s procedural reasonableness and argues that the

district court abused its discretion by failing to consider several mitigating factors that were raised

in his rejected pro se motion.

                                                  II

        Flowers claims that his sentence is procedurally unreasonable because the district court erred

in calculating the advisory Guidelines range and did not fully assess the value of his substantial

assistance to the Government. The Government asserts that Flowers’s objections are waived under

the plea agreement because he failed to raise them at sentencing. Flowers responds that his

objections were preserved in earlier court filings, notably in his objections to the PSR. Alternatively,

he argues that the waiver should not be enforced because his trial counsel was ineffective.

                                                   A

        A defendant in a criminal case may waive any right, even a constitutional right, by means of

a plea agreement. United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001). This court

reviews de novo whether a defendant validly waived his appellate rights. United States v. Smith, 344

F.3d 479, 483 (6th Cir. 2003).

        Flowers argues that the plea agreement’s waiver provision does not apply because the

grounds on which he appeals his sentence were preserved in various court filings made before the

actual sentencing. The PSR indeed confirms that both Flowers and his attorney lodged objections:




                                                   3
        On June 17, 2008, [Flowers’s attorney] submitted a written response to the [PSR]
        detailing several objections or requested changes to the report. This officer has also
        received numerous letters from Mr. Flowers regarding additional objections he would
        like noted in the [PSR]. This officer has discussed the objections with defense
        counsel and two objections remain unresolved.

Addendum to PSR 1. The first objection to which the Addendum refers is unrelated to this appeal.

However, the second objection concerns whether the PSR correctly determined that Flowers served

a 115-day sentence for his marijuana-possession conviction, resulting in two criminal-history points

being added to his total. Id. at 2.

        Although counsel raised the objection in response to the PSR, this was not enough to

preserve the issue on appeal because the plea agreement’s plain terms state that Flowers may only

appeal his sentence on grounds “preserved at sentencing.” Plea Agreement 3, at ¶ 5B (emphasis

added). Counsel’s sentencing memorandum, filed after the PSR addendum, opened by stating

“There are no unresolved objections to the Presentence Report,” R. 36, at 1, and counsel raised no

objection during sentencing. During allocution, Flowers spoke at some length but did not object to

the criminal-history scoring. Thus, Flowers’s objection was not preserved at sentencing and the

appellate-waiver provision applies.1


       1
         The court notes that Flowers has offered a reasonable, plausible explanation for his position
that he served only 27 days for his marijuana-possession offense. The PSR indicates that Flowers
was arrested on February 3, 1998, in possession of several marijuana “baggies.” At the time, police
discovered that Flowers had violated probation for a prior offense and that there was a warrant for
his arrest. Flowers pleaded guilty to violating probation and was sentenced to 90 days, with credit
for four days previously served; he began his sentence on February 4. On May 28, 1998, Flowers
pleaded guilty to possessing marijuana, the offense that led to his arrest on February 3.

       Based on these dates, the PSR reasoned that Flowers completed his probation-violation
sentence on May 28, the same day he was sentenced in the drug case. The PSR further deduced that
Flowers received 115 days for the drug offense, with credit for 86 days served for violating
probation. Therefore, the PSR assessed two criminal-history points for the drug conviction, see
U.S.S.G. § 4A1.1(b)-(c) (attributing two points to prior sentences over 60 days and one point to

                                                  4
        Flowers’s remaining challenges are similarly unpreserved. Flowers did not object at

sentencing to the district court’s failure to consider the argument, raised in his pro se motion for

downward departure, that his sentence should be reduced because of the 100:1 crack-versus-powder

cocaine disparity. Neither did Flowers argue that the court failed to fully assess the value of his

substantial assistance when ruling on the Government’s downward-departure motion under § 5K1.1.

Thus, these arguments are also waived.

                                                   B

        Flowers argues that the plea agreement’s waiver provision should not be enforced because

his trial counsel was ineffective by failing to raise the criminal history issue at sentencing. A waiver

of appeal rights may be challenged on the grounds that it was the product of ineffective assistance

of counsel. See In re Acosta, 480 F.3d 421, 422 n.2 (6th Cir. 2007); United States v. Payton, 380

F. App’x 509, 513 (6th Cir. 2010); United States v. Atkinson, 354 F. App’x 250, 252-54 (6th Cir.


lesser sentences), resulting in a total of ten points and placing Flowers in criminal-history category
V.
        Flowers disputes the PSR’s calculations. In particular, he asserts that he completed his
probation-violation sentence on May 1, 1998. The court notes that an 86-day sentence beginning on
February 4, 1998, would indeed have ended on May 1, not May 28. Flowers argues that his
probation-violation sentence was fully discharged when he was sentenced in the drug case; therefore,
the court could not have ordered the two sentences to run concurrently. Flowers concludes that his
drug-possession sentence ran 27 days, from May 1 to May 28, 1998. If this is true, Flowers’s
marijuana conviction was worth only one point, see § 4A1.1(c), and therefore his correct criminal-
history category was IV. (The court notes that there is some confusion as to when Flowers
completed his drug sentence: in the same paragraph, the PSR states that he was released on May 28
and June 17, 1998. See PSR 9-10, at ¶ 42. If so, Flowers’s marijuana sentence would have been 47
days, but still worth only one criminal-history point under § 4A.1.1). Flowers also provides evidence
that he requested that state authorities provide him with the sentencing transcript and PSR for his
drug offense, but was told that neither was available. See Def.’s Supp. Br. Ex. A.

        None of these claims were presented to the district court at sentencing and thus the issue was
not adequately preserved for purposes of this appeal. Flowers’s ineffective-assistance claim must
be raised in a post-conviction motion under 28 U.S.C. § 2255. See infra Part II.B.

                                                   5
2009). Given Flowers’s efforts and communications with the probation officer and Michigan courts,

and his plausible account of how much time was properly attributable to the marijuana offense, he

may very well have contemplated that trial counsel would raise this objection at sentencing.

However, the record is not adequately developed on this issue. Flowers’s claim of ineffective

assistance of counsel is more appropriately raised in a post-conviction motion under 28 U.S.C. §

2255. United States v. McCarty, 628 F.3d 284, 295-96 (6th Cir. 2010) (quoting United States v.

Long, 190 F.3d 471, 478 (6th Cir. 1999) (“We generally will not review an ineffective assistance of

counsel claim on direct appeal, as such claims are more appropriately raised in a post-conviction

motion under [] § 2255 when an adequate record may be developed on the issue.”)).

                                                   C

        Flowers’s final argument is that the district court abused its discretion in rejecting his pro se

motion for a downward departure or a variance and attached letter of allocution, which the district

court mailed back to him, but they were returned to the district court as undeliverable. Assuming

arguendo that this claim is not barred by the plea agreement, it fails nonetheless. Although a

criminal defendant has a constitutionally protected right to present his own defense in addition to a

constitutionally protected right to be represented by counsel, he has no right to hybrid representation.

See United States v. Cromer, 389 F.3d 662, 680 (6th Cir. 2004); 28 U.S.C. § 1654 (“In all courts of

the United States the parties may plead and conduct their own cases personally or by counsel . . . .”).

This court has declined to consider pro se arguments where the defendant is represented by counsel,

United States v. Martinez, 588 F.3d 301, 328 (6th Cir. 2009) (citing United States v. Howton, 260

F. App’x 813, 819 (6th Cir. 2008)), as have district courts within this circuit, see United States v.

Degroat, No. 97-CR-20004-DT-1, 2009 WL 891699, at *1 (E.D. Mich. Mar. 31, 2009) (striking


                                                   6
defendant’s pro se motion, noting “now that Defendant is represented by counsel, all filings must

be made by the attorney of record.”).

       Flowers argues that under Fed. R. Crim. P. 32 he had the absolute right to speak or present

any information to mitigate the sentence, and that the rejection of his allocution letter was thus an

abuse of discretion that requires resentencing. In addition, Flowers relies on 18 U.S.C. § 3661,

which provides that “[n]o limitation shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a court of the United States may

receive and consider for the purpose of imposing an appropriate sentence.” However, Flowers’s

right of allocution was not curtailed; he was permitted to address the court at sentencing, and would

have been permitted to present the letter at that time had he attempted to do so. Although it is

regrettable that the district court did not have Flowers’s pro se motion and allocution letter before

it at sentencing, we find no abuse of discretion in the magistrate judge’s having rejected the motion

because Flowers was represented by counsel at the time.

                                                 V

       For the foregoing reasons, we dismiss Flowers’s appeal. However, Flowers may pursue his

ineffective-assistance-of-counsel claim by way of a post-conviction motion under 28 U.S.C. § 2255,

which is expressly permitted by his plea agreement.




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