                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0064n.06

                                        Case No. 16-5452
                                                                                      FILED
                          UNITED STATES COURT OF APPEALS                         Jan 25, 2017
                               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 WESTERN DISTRICT OF
JERMAINE MORRISON,                                   )      TENNESSEE
                                                     )
       Defendant-Appellant.                          )




       BEFORE: COLE, Chief Judge; COOK and WHITE, Circuit Judges.

       COOK, Circuit Judge. Jermaine Morrison pleaded guilty to being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g). In a written plea agreement, Morrison waived

his right to appeal “any sentence imposed by the Court . . . so long as it is within the applicable

guideline range, or lower, whatever that guideline range might be.” Morrison appealed, arguing

that a change in the law entitles him to a reduced sentence and renders his appeal waiver

unenforceable. Because we enforce the waiver as written, we dismiss Morrison’s appeal.

                                                I.

       At sentencing, the prosecutor argued that Morrison’s prior conviction for Tennessee

aggravated burglary qualified as a “crime of violence,” setting his applicable guideline range at

77 to 96 months’ imprisonment. Although Morrison opposed the government’s classification,
Case No. 16-5452, United States v. Morrison


his objection never stood a chance. At the time the district court sentenced Morrison, the

Sentencing Guidelines defined “crime of violence” to include “burglary of a dwelling.”1 USSG

§§ 2K2.1 & comment. (n.1), 4B1.2(a) (2015). Additionally, in United States v. Ozier, this court

held that although Tennessee’s aggravated-burglary statute criminalizes more conduct than

“generic” burglary under the Guidelines, the statute is “divisible”—i.e., lists multiple offenses in

the alternative. 796 F.3d 597, 600–03 (6th Cir. 2015). That being so, we permitted courts to

review a “limited class of documents . . . to determine which alternative formed the basis of the

defendant’s prior conviction.” Id. at 600 (omission in original) (quoting Descamps v. United

States, 133 S. Ct. 2276, 2281 (2013)), abrogated by Mathis v. United States, 136 S. Ct. 2243

(2016). Bound by Ozier and the version of the Guidelines in effect at the time of sentencing, the

district court examined Morrison’s plea colloquy from his earlier conviction and, after

determining that he had burglarized a “dwelling,” overruled Morrison’s objection and imposed a

96-month sentence.

       Morrison appealed. While his appeal was pending, two legal developments cast doubt on

Tennessee aggravated burglary’s classification as a crime of violence. First, the Supreme Court

in Mathis v. United States clarified what makes a statute divisible, abrogating Ozier. See Mathis,

136 S. Ct. at 2251 & n.1. Second, we granted rehearing en banc to decide whether Tennessee’s

aggravated-burglary statute criminalizes more conduct than generic burglary under the Armed

Career Criminal Act, and if so, whether it is divisible in light of Mathis. United States v. Stitt,

646 F. App’x 454 (6th Cir. 2016) (Mem.). Stitt is currently pending before the court.




       1
        The Sentencing Commission recently removed “burglary of a dwelling” from the list of
enumerated crimes of violence, but that change did not take effect until August 1, 2016—four
months after the district court imposed its sentence. 81 Fed. Reg. 4741, 4742 (2016).
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Case No. 16-5452, United States v. Morrison


                                              II.

       On appeal, Morrison argues that Tennessee aggravated burglary no longer qualifies as a

crime of violence under the Guidelines and asks to be resentenced. But before addressing the

merits, we must determine whether Morrison’s appeal waiver forecloses our consideration of his

request. It does.

       We will enforce an appeal waiver included in a plea agreement when the agreement is

made knowingly and voluntarily. United States v. Toth, 668 F.3d 374, 378 (6th Cir. 2012)

(citing United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001)). Morrison may challenge

his waiver of appeal rights only “on the grounds that it was not knowing and voluntary, was not

taken in compliance with Fed. R. Crim. P. 11, or was the product of ineffective assistance of

counsel.” United States v. Detloff, 794 F.3d 588, 592 (6th Cir. 2015) (quoting United States v.

Atkinson, 354 F. App’x 250, 252 (6th Cir. 2009)).

       Here, Morrison makes no effort to undermine the voluntariness of his plea agreement, nor

does he assert a violation of Federal Rule of Criminal Procedure 11. Our independent review of

Morrison’s plea hearing confirms that he voluntarily waived his appellate rights. The district

court informed Morrison that he was giving up his right to appeal any sentence within the

guideline range, and explained the few narrow exceptions to that waiver (ineffective-assistance-

of-counsel or prosecutorial-misconduct claims). When asked if he understood, Morrison said

“Yes, sir.”

       Morrison instead relies on the change wrought by Mathis to maintain that he could not

knowingly waive his right to appeal. It is well settled, however, that a change in law cannot

render a plea agreement unknowing. See Brady v. United States, 397 U.S. 742, 757 (1970);

United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005) (“[W]here developments in the law


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Case No. 16-5452, United States v. Morrison


later expand a right that a defendant has waived in a plea agreement, the change in law does not

suddenly make the plea involuntary or unknowing or otherwise undo its binding nature.”).

This rule reflects the sound judgment that a plea agreement, like any other contract, allocates

risk. Bradley, 400 F.3d at 464. By waiving the right to appeal, a defendant assumes the risk that

a shift in the legal landscape may engender buyer’s remorse. Id.; see also United States v.

Morgan, 406 F.3d 135, 137 (2d Cir. 2005) (“The possibility of a favorable change in the law

after a plea is simply one of the risks that accompanies pleas and plea agreements.”).

       Accordingly, courts will enforce appeal waivers even when a legal development makes it

likely that the defendant would receive a lower sentence were the defendant resentenced under

the new law, and even when the legal change affects constitutional rights. For example, when

the Sentencing Commission lowered the base offense levels for many drug offenses in 2008 and

2014, defendants who waived their right to appeal could not benefit from the change. See, e.g.,

United States v. Ellison, No. 16-5085, 2016 WL 6818855, at *2 (6th Cir. Nov. 18, 2016) (per

curiam); United States v. Marquez, 570 F. App’x 816, 818–19 (10th Cir. 2014) (per curiam);

United States v. Polly, 630 F.3d 991, 1002 (10th Cir. 2011). Similarly, after the Supreme Court

voided for vagueness the “residual clause” in the ACCA’s definition of “violent felony,” see

Johnson v. United States, 135 S. Ct. 2551, 2557 (2015), courts routinely enforced the appeal

waivers of prisoners who stood to benefit. See, e.g., Sanford v. United States, 841 F.3d 578,

579–80 (2d Cir. 2016) (per curiam); In re Garner, No. 16-1655, 2016 WL 6471761, at *2 (6th

Cir. Nov. 2, 2016); United States v. Hurtado, No. 16-2021, 2016 WL 3410270, at *1 (10th Cir.

June 17, 2016) (per curiam); United States v. Bey, 825 F.3d 75, 83 (1st Cir. 2016); United States

v. Blackwell, 651 F. App’x 8, 10 (2d Cir. 2016) (per curiam); United States v. Ford, 641 F.

App’x 650, 651 (8th Cir. 2016) (per curiam).         Although Morrison understandably regrets


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Case No. 16-5452, United States v. Morrison


waiving his appellate rights in light of Mathis and Stitt, his “lack of clairvoyance cannot undo

[that] decision.” In re Garner, 2016 WL 6471761, at *2.

       In an effort to circumvent his appeal waiver’s preclusive effect, Morrison invokes United

States v. McBride, 826 F.3d 293 (6th Cir. 2016). In McBride, the defendant’s plea agreement

included an “understanding” that he would be sentenced as a career offender because “he ha[d]

at least two prior crime of violence convictions.” Id. at 294 (alteration in original). McBride

appealed his sentence following Johnson, arguing that his prior offense for bank robbery no

longer qualified as a crime of violence. Id. at 295. Although we recognized that McBride’s

consent to his career-offender designation would normally waive his right to challenge it on

appeal, we nonetheless reviewed for plain error, reasoning that “McBride could not have

intentionally relinquished a claim based on Johnson[.]” Id.

       But the McBride plea agreement, unlike the one here, did not include an appeal waiver;

McBride simply agreed that he qualified as a career offender. Looking past the waiver-inducing

effect of such a concession makes sense in those circumstances—after all, McBride could not

“have intentionally relinquished” a Johnson-based challenge to his career-offender designation

“considering [Johnson] was decided after [he was] sentenced.” United States v. Stines, 313 F.3d

912, 917 (6th Cir. 2002); see also McBride, 826 F.3d at 295. Morrison, on the other hand, could

and did intentionally relinquish his right to appeal. In doing so, he assumed the risk that he

would be denied the benefit of future legal developments. See, e.g., In re Garner, 2016 WL

6471761, at *2.

       Moreover, even if the district court erred in finding that Tennessee aggravated burglary

qualified as a crime of violence, its conclusion was “harmless and do[es] not require a remand

for re-sentencing.” United States v. Ward, 506 F.3d 468, 476 (6th Cir. 2007). If the record


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Case No. 16-5452, United States v. Morrison


shows that the district court would have imposed its sentence regardless of the Guidelines range,

then an error in calculating the Guidelines range is harmless. Molina-Martinez v. United States,

136 S. Ct. 1338, 1346 (2016). Here, in fixing Morrison’s sentence at 96 months confinement,

the top of Morrison’s Guidelines range, the district court emphasized that the offense was

“extremely dangerous and egregious” and that “domestic violence is prevalent” throughout

Morrison’s criminal history. The district court stated that had it determined that aggravated

burglary was not a crime of violence, it would have varied upward and ended up with the same

Guidelines range.2 Since the district court would have sentenced Morrison to 96 months without

regard to whether his conviction for Tennessee aggravated burglary qualifies as a crime of

violence, the alleged error in calculating the Guidelines range would not entitle Morrison to

resentencing in any event.

       In short, McBride does not disturb the general rule that appeal waivers remain

enforceable despite changes in the law. In re Garner, 2016 WL 6471761, at *2 (discussing

McBride and enforcing an appeal waiver akin to Morrison’s despite a change in law).

We discern no reason to depart from that rule.

       We accordingly dismiss Morrison’s appeal.
       2
           The district court explained:
                At the outset I will say this, I was considering an upward departure and/or
        an upward variance. That’s because I was facing two different guideline ranges.
        I’ve now made the decision that the 77 to 96 months is the appropriate sentence
        given the record before me. And so I’m not going to make an upward departure
        or variance in that regard.
                Had I ruled the other way on the aggravated burglary, and we had the
        lower sentencing range, I would have varied upward or taken advantage of 5K2.6
        and the use of a firearm, which in this court’s mind is not adequately taken into
        account with the cross-reference to reckless endangerment. And I would have
        made an upward variance and/or a departure and the type of sentence that we’re
        talking about and the range would come – have come back into play. So I just
        want that to be clear for the record.
R. 50, PID 147.
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