                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0223n.06

                                            No. 14-2132
                                                                                          FILED
                                                                                   Mar 24, 2015
                           UNITED STATES COURT OF APPEALS
                                                                               DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.
                                                        ON APPEAL FROM THE UNITED
                                                        STATES DISTRICT COURT FOR THE
PHILLIP COLE,
                                                        EASTERN DISTRICT OF MICHIGAN
       Defendant-Appellant.




BEFORE:        CLAY, KETHLEDGE, and DONALD, Circuit Judges.

       CLAY, Circuit Judge.           Defendant Phillip Cole appeals the district court order

sentencing him to 15 months of imprisonment for knowingly failing to update his sex offender

registration, in violation of 18 U.S.C. § 2250(a). Defendant has waived his right to appellate

review. We therefore DISMISS the appeal.


                                         BACKGROUND

       Defendant was convicted in 2003 of two counts of transportation of minors for illegal

sexual activity, in violation of 18 U.S.C. § 2423(a).        He was sentenced to 57 months of

imprisonment. As a condition of his sentence, Defendant was required to annually register as a

sex offender in the state of his residence following his release. He was responsible for ensuring

that authorities were apprised of his current address, to be listed on the public registry. If he

moved, he had 10 days to inform law enforcement officials, in person, of his new residence; if he

relocated to another state, he had 14 days to register with the authorities of the new jurisdiction.
                                           No. 14-2132


       Defendant was released in 2007. He initially registered with the Michigan authorities and

updated his information annually. But he failed to timely register in 2012 and was indicted in

September of that year. In July of 2013, Defendant was arrested following a traffic stop in

Columbus, Ohio.      At that time, he informed the authorities that he was living in Clinton

Township, Michigan. The last time he registered, in April 2011, he had listed as his permanent

address a residence in Detroit.

       Defendant pleaded guilty to one count of failure to register, in violation of 18 U.S.C.

§ 2250(a), on April 8, 2014.      The plea agreement acknowledged a disagreement between

Defendant and the government with respect to the applicable guidelines range. The basis of the

dispute was the proper interpretation of § 2A3.5 of the sentencing guidelines. Defendant’s view

suggested that the appropriate guidelines range was 10 to 16 months, whereas the government’s

view suggested 15 to 21 months. The agreement provided that the district court would decide

between the two interpretations, and that the court’s decision could not provide a basis for

Defendant’s withdrawal from the plea.         The agreement also included an appellate-waiver

provision. The court sided with the government and sentenced Defendant to 15 months of

imprisonment, the minimum term under the higher guidelines range. This appeal followed.


                                          DISCUSSION

       The government draws our attention to the appellate waiver in Defendant’s plea

agreement. We consider this at the outset and find that our review of the merits is foreclosed by

the appellate-waiver provision. A plea agreement is merely a contract between a defendant and

the government; we are typically bound by its terms. United States v. Bowman, 634 F.3d 357,

360 (6th Cir. 2011). It is well-established that a defendant is entitled to bargain away his right to

appellate review. United States v. Fleming, 239 F.3d 761, 763–64 (6th Cir. 2001). Thus, a valid


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waiver may preclude a challenge to the correct application of the sentencing guidelines. United

States v. Beals, 698 F.3d 248, 256 (6th Cir. 2012) (“[W]e [have] held that an appeal waiver that

extinguished a defendant’s right to appeal any sentence within or below the guideline range as

determined by the Court at sentencing . . . precluded any challenge to the district court’s

Guideline calculation.” (internal quotation marks omitted)).


       We will not review a sentence in the face of a valid waiver, save for a few “limited

circumstances.” United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003) (internal quotation

marks omitted). Defendant does not allege ineffective assistance of counsel, In re Acosta,

480 F.3d 421, 422 (6th Cir. 2007), that the government violated the terms of the agreement,

United States v. Swanberg, 370 F.3d 622, 627–28 (6th Cir. 2004), or that the government failed

to timely raise the waiver issue, Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir. 1998),

nor could he. The district court was not, as Defendant suggests, required to specifically ask

whether or not he understood the appellate-waiver provision of the plea agreement. United

States v. Sharp, 442 F.3d 946, 951–52 (6th Cir. 2006). A waiver is valid so long as it is

“voluntarily and knowingly made.” United States v. Murdock, 398 F.3d 491, 496–97 (6th Cir.

2005). Where the “provision was discussed in open court” and Defendant affirmed that he

understood the agreement, entered it voluntarily, acknowledged having “read [and] . . . discussed

it with his attorney, and [he] does not claim that his attorney’s explanation of the appellate-

waiver provision was inadequate,” the waiver is valid. Sharp, 442 F.3d at 952.

        Defendant agreed to accept without appeal any sentence not exceeding the upper-limit

of his guidelines range.    The agreement did not specify the applicable guidelines range.

Construing any ambiguity in Defendant’s favor, as we must, United States v. Jones, 569 F.3d

569, 572 (6th Cir. 2009), the provision applies to any term fewer than 17 months. His 15-month


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sentence falls comfortably within this waiver. Defendant has no right to this appeal or to

challenge the district court’s interpretation of the sentencing guidelines. That is the bargain he

struck as part of his decision to enter a plea agreement. In any event, we also find the merits of

Defendant’s appeal unpersuasive.


                                        CONCLUSION

       The appellate-wavier provision is valid and applicable to this case.        The appeal is

DISMISSED.




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