                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0951n.06

                                           No. 11-5791

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


                                                   )
                                                                                     FILED
                                                                        Nov 05, 2013
UNITED STATES OF AMERICA,                          )
                                                                   DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )
                                                   ) ON APPEAL FROM THE UNITED
TOI MELVIN,                                        ) STATES DISTRICT COURT FOR THE
                                                   ) EASTERN DISTRICT OF TENNESSEE
       Defendant-Appellant.                        )
                                                   )
                                                   )

Before: KEITH, GUY, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Toi Melvin pled guilty to crack cocaine

offenses and signed a plea agreement in which he waived his right to appeal unless his sentence

exceeded the Guidelines sentencing range “as determined by the district court.” Melvin also waived

his right to petition for a writ of habeas corpus on any grounds other than ineffective assistance of

counsel or prosecutorial misconduct. Despite the clarity of the written waivers, the district court

informed Melvin at his subsequent change-of-plea hearing, and Melvin affirmed, that he was

waiving any right to appeal or to seek relief under 28 U.S.C. § 2255 other than for ineffective

assistance of counsel, prosecutorial misconduct, or a change in the law.

       Melvin remained in custody awaiting sentencing for almost three years. During that time

Congress enacted the Fair Sentencing Act of 2010 (FSA), which increased the quantity of crack

cocaine that triggers enhanced penalties under 21 U.S.C. § 841. In September 2010, this court held
that the FSA did not affect the penalties associated with crimes committed before the statute was

enacted. See United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010). Accordingly, in May

2011 the district court, pursuant to the pre-FSA penalties, sentenced Melvin to 262 months of

imprisonment—the bottom of his Guidelines sentencing range. Melvin then filed this direct appeal.

       While Melvin’s appeal was pending, the Supreme Court held that the new drug-quantity

thresholds established in the FSA must be applied to offenders who committed the relevant crimes

before the effective date of the FSA but who are sentenced after that date. See Dorsey v. United

States, 132 S. Ct. 2321, 2335 (2012). Melvin now seeks the benefit of the Dorsey holding. The

United States has moved to dismiss the appeal on the basis that Melvin waived his right to appeal

his sentence when he signed his written plea agreement. For the reasons set forth below, we deny

the Government’s motion to dismiss the appeal, vacate the district court’s sentence, and remand the

case with instructions to re-sentence Melvin pursuant to the new thresholds established in the FSA.

                                                 I.

       Through the use of a confidential informant, law enforcement agents purchased crack

cocaine from Melvin on three separate occasions in late 2007. Subsequent laboratory analysis

revealed the quantities of each purchase to be 10.6 grams, 10.0 grams, and 22.9 grams. A federal

grand jury returned an indictment against Melvin in November 2007, charging him with three counts

of distributing five grams or more of a substance containing cocaine base (crack cocaine), a

Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Later that

month the United States Attorney notified Melvin that the United States intended to seek an

enhanced punishment on account of Melvin’s prior felony drug convictions.




                                                -2-
       In July 2008, Melvin signed a written plea agreement in which he agreed to plead guilty to

all three counts of the indictment. Because Melvin had two prior felony drug convictions, the plea

agreement stated that Melvin was subject to a minimum term of imprisonment of ten years for each

count. The United States agreed to support a three-level reduction for acceptance of responsibility

pursuant to Guidelines § 3E1.1(a) and (b). Melvin, in turn, agreed not to file a direct appeal of his

conviction or sentence unless the district court imposed a sentence “above the sentencing guideline

range as determined by the district court.” Melvin also waived his right to seek relief under 28

U.S.C. § 2255 except with respect to any claim of ineffective assistance of counsel or prosecutorial

misconduct. The plea agreement concluded with the stipulation that “the terms of this plea

agreement can be modified only in writing signed by all of the parties and . . . any and all other

promises, representations, and statements whether made before, contemporaneous with, or after this

agreement, are null and void.”

       Melvin appeared before the district court in July 2008 to change his plea. At that hearing

Melvin confirmed that his attorney had explained the terms of the plea agreement to him. The court

explained to Melvin that it would not consider whether to accept the plea agreement at that time, but

that Melvin would be afforded an opportunity to withdraw his guilty plea if the court later decided

not to accept the plea agreement. The court then asked: “Now, Mr. Melvin, do you understand that,

under the terms of your plea agreement, as contained in Paragraph 13 of the plea agreement, you are

waiving your right to file a direct appeal or any motions or pleadings, pursuant to 28 United States

Code Section 2255, except for ineffective assistance of counsel, prosecutorial misconduct[,] or a

change in the law?” Melvin replied, “Yes, your Honor.” Neither party objected to the district




                                                -3-
court’s representation of the scope of the appeal-waiver provision, and the court subsequently

accepted Melvin’s guilty plea.

       The United States Probation Office submitted Melvin’s presentence investigation report in

October 2008. At the time Melvin committed the offenses, the statutory maximum prison term for

distribution of five or more grams of crack cocaine was forty years. 21 U.S.C. § 841(b)(1)(B) (2006

ed.). Because Melvin had two prior qualifying convictions, however, and because the government

filed notice pursuant to 21 U.S.C. § 851 of its intent to seek an enhanced punishment, the statutory

maximum punishment for Melvin’s offenses was enhanced to life imprisonment. In tandem with

Melvin’s undisputed status under the Guidelines as a career offender, this resulted in a base offense

level of 37 and mandatory criminal history category of VI. See U.S.S.G. § 4B1.1 (2007). After

accounting for a three-level reduction for acceptance of responsibility, the probation officer

determined that Melvin’s total offense level was 34 and that the applicable Guidelines sentencing

range was 262 to 327 months of imprisonment.

       Melvin’s sentencing hearing was continued more than a dozen times, and Melvin

consequently did not appear before the district court for sentencing until May 2011. Nine months

earlier, in August 2010, the President signed into law the Fair Sentencing Act of 2010 (FSA), Pub.

L. 111-220, 124 Stat. 2372. That statute significantly changed the sentencing landscape for federal

crack cocaine offenses, most notably by increasing the quantity of crack cocaine that triggered

certain mandatory minimum terms of incarceration. In July 2010, while Congress debated the FSA,

Melvin wrote to the district court and asked to be sentenced under the revised FSA framework. But

any belief on Melvin’s part that he would benefit from this statute proved short-lived. This court

held in September 2010 that the quantity thresholds established in the FSA did not apply to offenses


                                                -4-
committed before the statute was enacted. See Carradine, 621 F.3d at 580. Carradine thus

precluded Melvin from reaping any benefit from the enactment of the FSA.

       Melvin wrote the court again, through counsel, when he submitted his sentencing

memorandum shortly before the sentencing hearing. Melvin noted the significant disparity between

a Guidelines sentencing range of 84 to 105 months, which ostensibly would have applied in the

absence of the career offender enhancement, and the range of 262 to 327 months to which he was

subject as a career offender. Melvin also attributed his drug offenses to a history of addiction, and

he argued that his convictions for dealing relatively small quantities of crack cocaine were “atypical

of the career offender envisioned” by the Sentencing Guidelines. He therefore believed the range

of 262 to 327 months to be “draconian” and “unduly harsh.” Finally, Melvin stated that the forty-

two months he spent in “‘local’ confinement facilities” awaiting sentencing were “substantially more

restrictive than confinement in a Federal Bureau of Prisons facility.” In consideration of all of these

factors, Melvin requested a downward departure under Guidelines § 4A1.3, a downward variance

pursuant to 18 U.S.C. § 3553(a), and a total sentence of 200 months of imprisonment.

       When he ultimately appeared before the district court for sentencing in May 2011, Melvin

did not propose any corrections or modifications to the presentence report. The court then

confirmed that Melvin would be treated as a career offender, and the court denied Melvin’s motions

for a downward departure and downward variance because Melvin had not offered proper

justifications for either the departure or the variance. The court sentenced Melvin to 262 months’

imprisonment, which “reflect[ed] the bottom of the guideline range,” because “this sentence will

afford adequate deterrence and provide just punishment.” The court also accepted the plea

agreement.


                                                 -5-
       Although Melvin timely filed a notice of appeal, various circumstances led to delays in the

processing of his appeal. Consequently, the clerk’s office did not set a briefing schedule in this

appeal until August 2012. In the meantime, the Supreme Court handed down its decision in Dorsey

v. United States, 132 S. Ct. 2321 (2012), in June 2012. That decision abrogated Carradine and held

that persons who committed crack cocaine offenses before the effective date of the FSA but who are

sentenced after that date are entitled to have their sentences calculated in accordance with the

revised drug-quantity thresholds established in the FSA.

       After Melvin submitted his brief in this appeal, the United States moved to dismiss the

appeal on the ground that Melvin had waived his right to appeal his sentence when he signed the

written plea agreement. Melvin opposed the motion, and a panel of this court determined that the

motion should be considered in conjunction with the consideration of the merits of the appeal. At

oral argument, the United States withdrew its opposition to the merits of Melvin’s appeal and

conceded that the case should be remanded to the district court for re-sentencing if we conclude that

Melvin did not waive his right to file this appeal. Accordingly, we need not address the merits of

the appeal.

                                                  II.

       The United States has moved to dismiss the appeal because Melvin signed a written plea

agreement in which he waived his right to appeal the sentence unless the district court imposed a

sentence “above the sentencing guideline range as determined by the district court.” A defendant

may surrender any right in a plea agreement provided that the waiver is made knowingly and

voluntarily. United States v. Wilson, 438 F.3d 672, 673 (6th Cir. 2006). This includes the right to

appeal. See id. at 674. But the defendant’s signature on the plea agreement, by itself, is insufficient


                                                 -6-
to establish that the defendant’s waiver of the right to appeal was knowing and voluntary. United

States v. Murdock, 398 F.3d 491, 498 (6th Cir. 2005). Before the district court may accept a

defendant’s guilty plea and the attendant plea agreement, “the court must inform the defendant of,

and determine that the defendant understands, . . . the terms of any plea-agreement provision

waiving the right to appeal or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N).

        A district court’s putative violation of Rule 11 is reviewed for plain error if the defendant

did not object before the district court. Murdock, 398 F.3d at 496. The defendant bears the burden

of proof and must demonstrate (1) error (2) that is plain and (3) that affects substantial rights. Id.

An appellate court then may exercise its discretion to notice a forfeited error only if (4) “the error

seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id. (internal

quotation marks omitted).

        With respect to the first two elements of the plain-error analysis, a district court’s failure to

comply with Rule 11(b)(1)(N) constitutes an error that is plain. Id. at 497. The initial question,

then, is whether the district court violated Rule 11(b)(1)(N) when it instructed Melvin that he

retained the right to appeal a change in the law, despite the plea agreement’s waiver of that right.

Although this court has never directly addressed whether an expansion of the exceptions to an

appeal-waiver provision is a violation of Rule 11(b)(1)(N), the district court’s inaccurate

recapitulation of the terms of an appeal-waiver provision, which necessarily hinders the objective

of Rule 11(b)(1)(N)’s mandate, is no less an error than the failure to inform the defendant of the

waiver terms in the first place. Cf. id. at 497. In an unpublished decision, moreover, this court has

held that a perfunctory or incomplete description of the scope of the appeal-waiver provision is plain

error. See United States v. Cohen, 515 F. App’x 405, 409 (6th Cir. 2013). And in Sarlog v. United


                                                   -7-
States, although the court did not analyze the defendant’s waiver pursuant to the Rule 11 or plain-

error frameworks, the court held that the district court’s misstatement about the scope of the waiver

prevented the defendant from making a knowing and voluntary waiver of his rights. 422 F. App’x

399, 403 (6th Cir. 2011) (per curiam). It follows that a district court’s failure to inform a defendant

of the proper scope of the appeal-waiver provision constitutes a Rule 11(b)(1)(N) violation and thus

is plain error.

        Yet not all violations of Rule 11(b)(1)(N) warrant reversal because not all violations affect

the defendant’s substantial rights. A Rule 11(b)(1)(N) violation affects a defendant’s substantial

rights only if the plea colloquy included no “functional substitute” for the Rule 11 safeguard.

Murdock, 398 F.3d at 497. Accordingly, this court has held that “where the defendant states that

he had reviewed the plea agreement with his attorney and that his attorney had explained the

agreement, or where the prosecutor refers to the waiver provision in summarizing the terms of the

plea agreement, this may be sufficient to insure that the waiver was knowing and voluntary.” United

States v. Robinson, 455 F.3d 602, 610 (6th Cir. 2006); see also United States v. Sharp, 442 F.3d 946,

949–52 (6th Cir. 2006); Wilson, 438 F.3d at 674. In Murdock we likewise stated that it might “be

sufficient for a defendant to assure the district court that he has reviewed the waiver provision (or,

at a bare minimum, the plea agreement) with his attorney and that his attorney has explained it.”

398 F.3d at 498.

        Despite that dicta, however, we have never held that the defendant’s on-the-record

confirmation of his prior review of the plea agreement with his attorney is a “functional substitute”

for the Rule 11(b)(1)(N) colloquy. In Robinson, Sharp, and Wilson, we held the waiver to be valid

only because the prosecutor correctly described the scope of the appeal-waiver provision during the


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plea colloquy. At Melvin’s change-of-plea hearing, by contrast, the prosecutor did not correct the

district court’s inaccurate description of the appeal-waiver provision in the plea agreement.

       Murdock also did not address or contemplate the situation where the district court

inaccurately described the scope of the appeal-waiver provision during the plea colloquy. We

addressed that issue in a more recent unpublished decision. In Sarlog v. United States, we stated:

       It is true that courts may not modify plea agreements, and that statements made by
       the court do not supercede the terms of an agreement when the waiver is knowingly
       and voluntarily made. However, where . . . the court’s misstatement comes before
       the plea is accepted and in circumstances that cause the defendant to misunderstand
       the terms based on the court’s explanation, the defendant cannot be said to have
       knowingly and voluntarily waived the rights that the court purported to tell him he
       retained.

422 F. App’x at 403 (internal citation omitted).

       Sarlog is consistent with our decision in United States v. Fleming, 239 F.3d 761, 764–65 (6th

Cir. 2001), where we held that a district court’s post-sentencing formulaic recitation of the parties’

right to appeal the sentence cannot reinstate a right to appeal that the defendant previously waived

in the plea agreement. In Melvin’s case, unlike Fleming, the district court’s misstatement came

before its acceptance of his guilty plea, and nearly three years before its acceptance of the plea

agreement. Cases in other circuits have, like Sarlog, differentiated between misstatements by the

district court that come before the plea is accepted and those that come after acceptance of the plea.

See, e.g., United States v. Wilken, 498 F.3d 1160, 1167–69 (10th Cir. 2007).

       In United States v. Saferstein, for example, the plea agreement stated that the waiver was

“not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be

waived.” 673 F.3d 237, 242 (3d Cir. 2012). During the Rule 11 plea colloquy, however, the district

court stated that the appellate waiver “of course, is not intended to bar you [from] raising


                                                   -9-
constitutional claims, and only the Court can decide whether they are constitutional claims or some

other kind of claim.” Id. (alteration in original). The Third Circuit held that “a statement made by

the sentencing court during the colloquy can create ambiguity where none exists in the plain text of

the agreement.” Id. at 243. The court construed the ambiguity in the defendant’s favor and held that

the district court’s narrower interpretation of the appeal-waiver provision in open court controlled

the scope of that waiver.1 Id.

       In United States v. Padilla-Colon, the First Circuit similarly considered whether the district

court’s misstatement was “sufficiently misleading to nullify [the] waiver.” 578 F.3d 23, 28 (1st Cir.

2009). Focusing on the context in which the misstatement was made, the First Circuit found that

the waiver was not knowing and voluntary because the district court plainly stated that the defendant

retained the right to appeal an adverse safety-valve determination when, in fact, the defendant had

waived that right in the plea agreement. Id. at 29. And in United States v. Manigan, the Fourth

Circuit stated, “When a district court has advised a defendant that, contrary to the plea agreement,

he is entitled to appeal his sentence, the defendant can hardly be said to have knowingly waived his

right of appeal.” 592 F.3d 621, 628 (4th Cir. 2010).




       1
         The United States contends that the district court’s misstatement at Melvin’s change-of-plea
hearing did not create an ambiguity because the language in the plea agreement was unambiguous
and the district court used “slightly different words than those in the plea agreement.” No one
disputes whether the appeal-waiver provision was pellucidly clear. The problem is that the district
court created ambiguity where none previously had existed because the district court mistakenly
misstated the straightforward appeal-waiver provision. With respect to whether the district court’s
recapitulation of the appeal-waiver provision was “slightly” or “substantially” inaccurate, we need
not thrust ourselves into that semantic debate. Slight though the misstatement may have been, the
only relevant inquiry is whether Melvin’s appeal falls within the appeal-waiver exceptions
articulated by the district court.

                                                -10-
       This logic comports with the essence if not the exact letter of Murdock. At the change-of-

plea hearing, Melvin’s attorney never confirmed to the district court that he had reviewed the appeal-

waiver provision with Melvin, but Melvin did confirm that his attorney had explained the terms of

the plea agreement to him. Murdock posited in dicta that such an assurance might, “at a bare

minimum,” permit the district court to satisfy itself of the knowingness and voluntariness of the

defendant’s appeal waiver. See 398 F.3d at 498. But neither Murdock nor the other cases

addressing the district court’s omission of the Rule 11(b)(1)(N) colloquy are apposite where the

district court conducts that inquiry yet inaccurately describes the scope of the appeal waiver. The

weight of the authority in this circuit and others leads inexorably to the conclusion that the district

court’s inadvertent expansion of the exceptions to an appeal-waiver provision in a plea agreement

controls the actual scope of the defendant’s waiver, provided that the district court misstates the

scope of that waiver before accepting the defendant’s guilty plea.

       Accordingly, Melvin has not waived his right to file this appeal. The district court informed

Melvin that he would be permitted to file a direct appeal based on a subsequent change in the law.

Although the district court’s original sentence was consistent with the law of this circuit at the time

of Melvin’s sentencing, the law changed when the Supreme Court abrogated Carradine and held that

persons such as Melvin are entitled to reap the benefits of the FSA’s revised drug-quantity

thresholds. However trivial the district court’s misstatement seems to be, that misstatement prevents

us from concluding that Melvin’s appeal waiver was knowing and voluntary. Melvin’s current

appeal is predicated upon a change in the law and therefore fits within the exception that the district

court inadvertently carved into the plea agreement’s appeal-waiver provision.

                                                 III.


                                                 -11-
       For the reasons stated above, the Government’s motion to dismiss Melvin’s appeal is

DENIED. Because the United States conceded at oral argument that the district court committed

plain error when it sentenced Melvin in accordance with the pre-FSA drug-quantity thresholds and

penalties, we need not assess the merits of Melvin’s appeal. We VACATE Melvin’s sentence and

REMAND this case to the district court with instructions to re-sentence Melvin in accordance with

the post-FSA drug-quantity thresholds and applicable Sentencing Guidelines.




                                              -12-
