                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0814n.06
                            Filed: October 5, 2005

                                            No. 04-3737

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v.                                     )                   COURT FOR THE NORTHERN
                                       )                   DISTRICT OF OHIO
FRANCISCO PATINO,                      )
                                       )                           OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: DAUGHTREY, MOORE, and MCKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Francisco Patino

(“Patino”) alleges on appeal that the district court erred by: (1) denying his motion to dismiss the

indictment based on alleged violations of the Speedy Trial Act; (2) sentencing him in violation of

United States v. Booker, 125 S. Ct. 738 (2005); and (3) selecting an improper total offense level in

determining the appropriate sentence under the federal sentencing guidelines. For the reasons set

forth below, we conclude that in light of Booker, the district court plainly erred in sentencing Patino

under the belief that the federal sentencing guidelines were mandatory. Therefore, we VACATE

Patino’s sentence and REMAND for resentencing. As to the other errors raised by the defendant,

we DISMISS the appeal regarding the remaining claims as inconsistent with the appellate-review

waiver in Patino’s plea agreement.
                                       I. BACKGROUND

       On February 6, 2002, Francisco Patino and three codefendants were indicted in the Northern

District of Ohio on a fifteen-count indictment stemming from the illegal distribution of

pseudoephedrine. On July 2, 2002, Patino was arrested in the Northern District of California based

on the charges in the indictment. Patino was then transported to the Northern District of Ohio and

arraigned there. On February 18, 2003, Patino filed a motion to dismiss the indictment based on

alleged violations of the Speedy Trial Act. The district court denied this motion.

       On April 14, 2003, Patino entered into a plea agreement with the government. Under the

terms of the agreement, Patino agreed to plead guilty to Count One, conspiracy to manufacture and

possess with intent to manufacture 500 grams of a mixture or substance containing a detectable

amount of methamphetamine in violation of 21 U.S.C. § 846. In exchange the government agreed

to dismiss the remaining charges against Patino. In the agreement both parties stipulated that the

amount of methamphetamine attributable to the defendant “was fifteen kilograms or more of a

mixture and substance containing a detectable amount of methamphetamine.” Joint Appendix

(“J.A.”) at 180 (Plea Agreement at 4). The agreement also noted that both parties admitted that

under the 2001 Guidelines Manual the appropriate base offense level was thirty-eight. Nonetheless,

the agreement reserved the defendant’s right to argue that the 2000 Guidelines Manual applied to

the case and thus the appropriate base offense level would be thirty. The agreement also reserved

the defendant’s right to argue before the district court that the defendant should receive a two-level

reduction pursuant to the safety-valve provision U.S.S.G. § 5C1.2 and a two-to-four level reduction

for Patino’s mitigating role in the criminal offense under U.S.S.G. § 3B1.2. Finally, the agreement

contained a waiver provision which stated that:



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       Defendant acknowledges having been advised by counsel of his rights, in limited
       circumstances, to appeal the conviction or sentence in this case, including the appeal
       right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence
       collaterally through a post-conviction proceeding, including a proceeding under 28
       U.S.C. § 2255. The defendant expressly waives those rights except as reserved
       below. The defendant reserves the right to appeal the imposition of any sentence
       inconsistent with the provisions of this plea agreement. Nothing in this paragraph
       shall act as a bar to the defendant perfecting any legal remedies he may otherwise
       have on appeal or collateral attack respecting claims of ineffective assistance of
       counsel or prosecutorial misconduct.

J.A. at 184 (Plea Agreement at 8).

       At the sentencing hearing, the defense counsel objected to the determination in the

presentence report that the 2001 Guidelines Manual applied. Moreover, the defense counsel also

argued that: (1) the defendant should receive a downward departure; (2) the defendant should

receive a two-level reduction pursuant the safety-valve provision in U.S.S.G. § 5C1.2; (3) the

defendant should receive a reduction for his mitigating role in the offense under U.S.S.G. § 3B1.2.

The district court concluded that the 2001 Guidelines Manual applied and thus the appropriate base

offense level was thirty-eight. The district court then determined that the defendant was entitled to

a two-level reduction for specific offense characteristics under U.S.S.G. § 2D1.1(b)(6), a three-level

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) -(b), and a two-level reduction

pursuant to the safety-valve provision under U.S.S.G. § 5C1.2. Thus, the defendant’s total offense

level was thirty-one. The district court then concluded that the defendant’s criminal history category

was I. This placed the defendant in a sentencing range of 108 months’ imprisonment to 135 months’

imprisonment. The district court sentenced the defendant to 108 months’ imprisonment and three

years’ supervised release.




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                                          II. ANALYSIS

       On appeal, Patino raises three basic claims: (1) that the district court erred by denying his

motion to dismiss the indictment based on alleged violations of the Speedy Trial Act; (2) that the

district court sentenced him in violation of Booker; and (3) that the district court selected an

improper total offense level in determining the appropriate sentence under the federal sentencing

guidelines. We will address each of these claims in turn.

A. Speedy Trial Act

       Patino argues that the district court erred in denying his motion to dismiss the indictment

based on his claims that delays by the prosecution violated the Speedy Trial Act. Whether the

district court erred in denying Patino’s motion is immaterial, however, if Patino waived his right to

appeal this decision based on the terms of his plea agreement. If the appellate-review waiver

contained in Patino’s plea agreement prevents Patino from challenging the district court’s denial of

Patino’s motion to dismiss, then we may not address this claim. We review de novo the question

of whether a defendant waived his right to appeal a district court’s decision based on the terms of

his plea agreement. See United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005).

       Patino agreed, pursuant to his plea agreement, to waive his right to appellate review of his

conviction and sentence as to any claim not involving the district court’s imposition of a sentence

that was inconsistent with the plea agreement, ineffective assistance of counsel, or prosecutorial

misconduct. The plea agreement’s appellate-review-waiver provision thus operates as a general

waiver with three narrowly drawn exceptions. Patino’s Speedy Trial Act claim does not implicate

any of these three exceptions.1 We therefore must conclude that Patino’s challenge to the district


       1
         While Patino does not directly address the implications of the appellate-review waiver in
his brief, he does suggest that oral argument is warranted in part because “[t]he instant case involves

                                                  4
court’s denial of his motion to dismiss on Speedy Trial grounds is barred by the plea agreement’s

appellate-review-waiver provision. See United States v. Allison, 59 F.3d 43, 46 (6th Cir.), cert.

denied, 516 U.S. 1002 (1995) (holding that a defendant is not permitted to raise on appeal claims

waived in a plea agreement); United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (noting

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

a plea agreement.”) (internal quotation marks and citation omitted).

B. Booker Claim

        We may review Patino’s Sixth Amendment claim based on Booker despite the fact that the

Supreme Court did not issue its decision in Booker until after the district court sentenced Patino.2

See Booker, 125 S. Ct. at 769 (noting that the case’s holdings apply to all cases pending on direct

review). As Patino failed to raise a Booker challenge to his sentence in district court, however, we

can reverse only on a showing of “plain error” by the district court. United States v. Oliver, 397

F.3d 369, 375 (6th Cir. 2005).


serious constitutional questions regarding . . . whether [Patino was] afforded effective assistance of
counsel.” Appellant’s Br. at 1. This allegation of ineffective assistance of counsel is thereafter not
mentioned by the defendant elsewhere in his brief. We therefore do not consider this allegation as
a valid means of circumventing the plea agreement’s waiver provision. See Spirko v. Mitchell, 368
F.3d 603, 612 (6th Cir. 2004), cert. denied, 125 S. Ct. 1699 (2005) (“It is a settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived”) (internal quotation marks and citation omitted). Moreover,
nothing in the current record suggests that Patino’s trial counsel provided ineffective assistance of
counsel with respect to the claims raised on appeal. Normally we do not consider ineffective
assistance of counsel on direct appeal because of the lack of adequate record; the appropriate vehicle
for raising such claims is usually an application pursuant to 28 U.S.C. § 2255. United States v.
Jackson, 181 F.3d 740, 747 (6th Cir. 1999).
        2
        The appellate-review-waiver provision in Patino’s plea agreement would seem to waive
Patino’s right to challenge his sentence based upon Booker. The government has forfeited its right
to enforce this clause, however, by failing to raise the issue in its brief on appeal. See Hunter v.
United States, 160 F.3d 1109, 1113 (6th Cir.1998) (“[A]s with any other argument, the government
can forfeit a waiver argument by failing to raise it in a timely fashion.”).

                                                   5
        In this case no Sixth Amendment violation occurred in light of the Supreme Court’s decision

in Booker. Patino was sentenced not based upon judge-found facts, but rather only upon facts to

which he admitted in his plea agreement. See United States v. Webb, 403 F.3d 373, 381 (6th Cir.

2005) (no Sixth Amendment violation where the defendant admitted in his plea agreement the facts

upon which sentencing was based). Therefore, no constitutional infirmities were created by the

district court’s reliance on these facts to enhance Patino’s sentence. “The district court did err,

however, in determining [Patino’s] sentence based on the presumption that the Guidelines were

mandatory.” Id. Under our decision in United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), in

which we held that a remand for resentencing is appropriate now that the guidelines are advisory,

we find that the plain-error test is met in this case. The district court sentenced Patino to 108

months’ imprisonment, which was the lowest sentence possible in the appropriate guideline range.

Additionally, while the district court did deny Patino’s motion for a downward departure, the district

court acknowledged that there was some disparity in the sentence Patino received in comparison to

the sentences received by Patino’s codefendants. J.A. at 268 (Sentencing Tr. at 38). These facts at

least suggest that, “if the district court in this case had not been bound by the range prescribed in the

Guidelines, [Patino] may have received a lower sentence.” Barnett, 398 F.3d at 528. Finally,

although the district court stated that it believed the defendant was being sentenced in the

appropriate Guidelines range, we do not interpret this as “clear and specific evidence that the district

court would not have, in any event, sentenced the defendant to a lower sentence under an advisory

Guidelines regime.” Id. at 529. In context, the district court’s statement is ambiguous and could

be interpreted to suggest only that the district court felt its calculation of the offense level and

Guidelines range under the federal sentencing guidelines was accurate. We therefore vacate Patino’s

sentence and remand the case to the district court for resentencing consistent with Booker.

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C. Calculation of Offense Level

       Patino’s final claim of error is that the district court erroneously calculated his total offense

level. Specifically Patino alleges that: (1) he ought to have received an additional reduction in his

offense under U.S.S.G. § 3B1.2 for being a minor participant in the underlying offense; (2) the

district court erred in denying Patino’s motion for a downward departure; and (3) the 2000

Guidelines Manual rather than the 2001 Guidelines Manual ought to have applied.

       The plea agreement which Patino entered into with the government permitted him to raise

these challenges to the appropriate total offense level at sentencing before the district court. Thus,

Patino’s defense counsel properly raised each of these claims at sentencing. As discussed above,

however, the waiver provision in the plea agreement bars Patino from raising on appeal any claims

regarding the validity of his sentence, except in three limited circumstances: (1) where Patino

received a sentence inconsistent with the terms of the plea agreement; (2) where Patino was denied

effective assistance of counsel; or (3) where prosecutorial misconduct occurred. Like Patino’s

Speedy Trial Act claim, none of the sentencing errors raised by Patino regarding his total offense

level implicated any of these limited exceptions to the appellate-review-waiver provision.3

Therefore, while the plea agreement permitted Patino to raise these claims before the district court,

it bars Patino from raising them before us on appeal. See Calderon, 388 F.3d at 200 (noting that a

reservation of the right to raise an issue before the district court does not alter an otherwise valid

appellate-review waiver in a plea agreement which encompasses that issue). We thus dismiss these

claims as inconsistent with the plea agreement’s appellate-review-waiver provision.



       3
        As noted earlier, Patino’s suggestion of ineffective assistance of counsel in his statement
in support of oral argument is insufficient, without further elaboration in the brief, to circumvent the
plea agreement’s waiver.

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                                     III. CONCLUSION

       For the reasons discussed above, we VACATE Patino’s sentence and REMAND for

resentencing. As to the other errors raised by the defendant, we DISMISS the appeal regarding the

remaining claims as inconsistent with the appellate-review waiver in Patino’s plea agreement.




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