                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0884n.06

                                           No. 14-1026


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
UNITED STATES OF AMERICA,                                )                    Nov 24, 2014
                                                         )                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                               )
                                                         )
                                                                  ON APPEAL FROM THE
v.                                                       )
                                                                  UNITED STATES DISTRICT
                                                         )
                                                                  COURT FOR THE
KEVIN LASH,                                              )
                                                                  WESTERN DISTRICT OF
                                                         )
                                                                  MICHIGAN
       Defendant-Appellant.                              )
                                                         )
                                                         )

BEFORE:        NORRIS, MOORE, GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Kevin Lash appeals his sentence imposed

following his guilty plea—120 months for being a felon in possession of a firearm (count one)

and 151 months for possession with intent to distribute cocaine (count two), to be served

concurrently—on the grounds that the application of the career offender guidelines was

unconstitutional and his sentence was substantively unreasonable. Because Lash waived his

right to appeal the sentence in his plea agreement, we affirm.

                                                I.

       Kevin Lash was indicted for being a felon in possession of a firearm in violation of

18 U.S.C. §§ 922(g)(1), 924(a)(2) (count one); possession with intent to distribute cocaine base

in violation of 21 U.S.C. § 841(a)(1) (count two); and possession of a firearm in furtherance of

drug trafficking in violation of 18 U.S.C. § 924(c) (count three). Following his indictment, Lash

pled guilty to counts one and two pursuant to a plea agreement.

                                                1
       At the time of Lash’s plea hearing, both defense counsel and the government were aware

of only one prior felony conviction that would be applied toward the career offender

enhancement. After Lash’s guilty plea was accepted, however, the probation officer discovered

an additional drug trafficking felony. As a result, Lash’s offense level increased from 17 to 29,

and his career history category increased from III to VI. This, in turn, increased his advisory

guideline range from an earlier estimate of 30–37 months to 151–188 months.

       Lash objected to the application of the career offender enhancement, arguing that it was

unconstitutional because the conviction had not been proven by a jury beyond a reasonable

doubt. The district court, overruling Lash’s objection, applied the career offender enhancement.

Despite the court’s decision to allow Lash to withdraw his plea, Lash indicated that he wished to

proceed with the sentencing process to take advantage of the plea offer.         After the court

determined that a sentence at the lower end of the guidelines would promote respect for the law

and provide just punishment for the offence, the court sentenced Lash to 120 months on count

one and 150 months on count two to run concurrently.

       Lash now appeals his sentence on two grounds: (1) the application of the career offender

guidelines to his sentence was unconstitutional; and (2) his sentence was substantively

unreasonable.

                                               II.

       Before reaching the merits of the district court’s decision, the government contends that

Lash waived his right to appeal as part of his plea agreement. We agree. A defendant may

waive any right, including a constitutional right, in a plea agreement if the waiver is knowingly

and voluntarily made. See United State v. Toth, 668 F.3d 374, 377–78 (6th Cir. 2012). “Plea

agreements are to be enforced according to their terms.” United States v. Moncivais, 492 F.3d



                                               2
652, 662 (6th Cir. 2007).            But because the government is held to a greater degree of

responsibility for imprecisions, “[a]mbiguities in a plea agreement are . . . construed against the

government.” See United States v. Bowman, 634 F.3d 357, 360–61 (6th Cir. 2011).

        To begin, Lash’s plea agreement is in no way ambiguous. He retained “the right to

appeal a sentence that exceed[ed] the statutory maximum or [was] based upon an

unconstitutional factor such as race, religion, national origin or gender.” Here, Lash’s sentence

did not exceed the statutory maximum. Moreover, the district court did not reference any

impermissible factor. Rather, it properly considered and weighed the § 3553(a) factors. The

judge took into account Lash’s inability to reform himself after obtaining two controlled

substance convictions, his multiple probation violations, and his bond violations.                  He also noted

that Lash is currently a risk to the public.

        Both Lash’s constitutional challenge and substantive reasonableness challenge simply do

not fit within the narrow exception in the appeal waiver, and thus his challenge to his sentence is

precluded by the appeal waiver. See United States v. Ward, No. 13-1460 (6th Cir. Dec. 12,

2013) (Order) (determining that appeal challenging constitutionality of sentence was barred by

plea agreement); United States v. Farias, No. 11-2479 (6th Cir. Aug. 20, 2012) (Order)

(concluding that Eighth Amendment challenge to sentence was barred by plea agreement). Lash

offers no argument contesting this position on appeal.

        Furthermore, Lash does not deny that his waiver of his right to appeal was knowing and

voluntary. Indeed, following the magistrate judge’s explanation of the appeal waiver, Lash

acknowledged that he understood it and expressed his decision to agree to the waiver. 1 On these

facts, we find that Lash’s appeal is barred by the express terms of the appeal waiver.


        1
          THE COURT: . . . Paragraph 12 talks about a couple rights that you would have, even
        though you’re pleading guilty. First of all there is the right to appeal. In federal court, even

                                                         3
                                                III.

For the above reasons, we affirm the district court’s decision.




though a defendant pleads guilty, the defendant has the right to appeal the sentence to the
Court of Appeals, if the defendant believes that the sentence is either illegal or unreasonable.
This says you understand you would have the right to appeal, but that you’re giving up your
right to appeal the sentence and the manner in which it was determined. You can always
appeal if you think the Court based your sentence on an unconstitutional factor, such as your
race, religion, or if the Court goes above the ten and twenty year statutory maximums, which
isn’t very likely, but other than those very narrow grounds, you are saying you will not appeal
your sentence to the Court of appeals. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And is that what you’ve decided to do?
THE DEFENDANT: Yes.


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