                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0151p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                               Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 05-2525
           v.
                                                      ,
                                                       >
 JOE LOUIS MCINTOSH,                                  -
                              Defendant-Appellee. -
                                                      -
                                                      -
                                                     N
                       Appeal from the United States District Court
                  for the Western District of Michigan at Grand Rapids.
                    No. 03-00022—Richard A. Enslen, District Judge.
                                           Argued: March 14, 2007
                                     Decided and Filed: May 1, 2007
             Before: MARTIN and CLAY, Circuit Judges; POLSTER, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Andrew B. Birge, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellant. Scott Graham, HOWARD & HOWARD, Kalamazoo, Michigan, for
Appellee. ON BRIEF: John F. Salan, ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellant. Scott Graham, HOWARD & HOWARD, Kalamazoo, Michigan,
for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
         BOYCE F. MARTIN, JR., Circuit Judge. Defendant Joe Louis McIntosh pled guilty to being
a felon in possession of a firearm and possession with intent to distribute five grams or more of
cocaine base. The latter count carried a statutory minimum of sixty months’ imprisonment. The
district court sentenced McIntosh to thirty months. The government now appeals, claiming that the
plea agreement did not authorize the district court to depart below the statutory minimum. For the
reasons below, we hold that the plea agreement authorized this sentence. Therefore, the judgment
of the district court is AFFIRMED.

        *
          The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                         1
No. 05-2525               United States v. McIntosh                                                           Page 2


                                                         I.
        On August 6, 2002, officers from the Grand Rapids Police Department, acting on a search
warrant issued by a state judge, searched the residence of Joe Louis McIntosh. While inside, the
officers discovered approximately twenty-six grams of crack cocaine in the living room and two
loaded handguns in the bedroom, one of which was stolen. McIntosh, who was carrying $3,159 in
cash, made several incriminating statements during and subsequent to the search.
        The case was referred to federal authorities under the Project Safe Neighborhoods program,
and on January 30, 2003, McIntosh was charged with two counts: felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1), and possession with intent to distribute five grams or more of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii).1 McIntosh filed a motion to
suppress the evidence seized at his house, which was granted by the district court on April 7, 2003.
On August 30, 2004, this Court reversed the district court’s suppression order. United States v.
McIntosh, 109 F. App’x. 65 (6th Cir. 2004). McIntosh filed another motion to suppress, which was
denied by the district court.
        On June 30, 2005, McIntosh pled guilty to both counts in the indictment. According to the
plea agreement, in exchange for his promise to provide information to investigators, the government
agreed to consider filing a motion for reduction of sentence under U.S.S.G. § 5K1.1 and Fed. R.
Crim. P. 35(b). The plea agreement further provided that
       the Court has complete discretion to grant or deny the motion. Furthermore, if the
       Court were to grant the motion, the Court has complete discretion to determine how
       much of a sentence reduction the Defendant will receive based upon the nature and
       extent of the Defendant’s assistance.
Plea Agreement, par. 11 (emphasis added). At the plea hearing, the following exchange took place:
       THE COURT: Now, Congress now says I don’t have to follow these mandatory
       guidelines, but unless there is a bargain in here that I haven’t yet seen, I would have
       to follow a five year mandatory minimum sentence. Is there something in [the] plea
       agreement that takes that away?
       [ASSISTANT UNITED STATES ATTORNEY (AUSA)]: There is an agreement,
       Your Honor, to file a cooperation downward departure.
       THE COURT: You could avoid the mandatory five years is what he’s saying. . . .
Plea Hearing Transcript at 12. The AUSA voiced no objection to the district judge’s conclusion that
the plea agreement allowed him to depart below the statutory minimum in addition to referencing
the agreed-upon downward departure. Shortly after this exchange, the district judge told the
defendant: “Paragraph 9 [referring to defendant’s cooperation with law enforcement] is an
important paragraph because it’s a preceding paragraph to you being able to avoid the mandatory
five year punishment.” Id. at 17. Once again, the AUSA did not object to this conclusion.
        On September 28, 2005, the government filed a downward departure motion pursuant to
§ 5K1.1 requesting a one-level reduction in sentence. At the October 19, 2005, sentencing hearing,
the district judge employed a three-step process in an effort to comply with United States v. Booker,
543 U.S. 220 (2005) . First, he determined the applicable Guidelines range, which was 100 to 125


       1
           21 U.S.C. § 841(b)(1)(B)(iii) provides for a mandatory minimum five-year (sixty-month) sentence.
No. 05-2525                 United States v. McIntosh                                                            Page 3


months (based on an adjusted offense level of 27 and a Criminal History Category of IV).2 The
district judge then noted the government’s § 5K1.1 motion for a one-level reduction. He considered
McIntosh’s character and evaluated the extent of McIntosh’s assistance and his criminal
responsibility relative to that of his drug supplier, ultimately coming to the conclusion that McIntosh
actually deserved a three-level reduction. This gave McIntosh an offense level of 24, which, when
paired with a Criminal History Category of IV, resulted in an advisory Guidelines range of seventy-
seven to ninety-six months. After this calculation, the district judge turned to the sentencing factors
under § 3553(a). In noting the disparity between sentencing for possession of cocaine base versus
powder cocaine, he stated that he “believe[d] the scoring of cocaine base is too harsh and results
typically in too punitive of sentence considering the statutory purpose of sentencing.” The district
judge found that a Criminal History Category of IV was too punitive given McIntosh’s past.
Concluding that McIntosh “will use this conviction as an opportunity to turn a corner in his life and
reform his future conduct,” he chose to adopt an offense level and Criminal History Category of 18
and II, respectively. This resulted in a Guidelines range of thirty to thirty-seven months. He
sentenced McIntosh to thirty months’ imprisonment and four years of supervised release. Id. Upon
objection by the AUSA3 for departing below the statutory minimum, the district judge stated that
he believed such a departure was within the scope of his authority, and informed the AUSA that he
could appeal the sentence if he so desired.
       The government filed this timely appeal. The only question presented here is whether the
plea agreement permitted the district court to depart below the five-year mandatory minimum
sentence authorized by 21 U.S.C. § 841(b)(1)(B)(iii). In order to answer this question, we must
determine whether the government—by its actions or omissions—consented to such a departure.
We review the district court’s interpretation of the Sentencing Guidelines and a federal statute de
novo. United States v. Palacios-Suarez, 418 F.3d 692, 694 (6th Cir. 2005).
                                                           II.
                                                           A.
       A court may not depart below the statutory minimum unless the government moves for such
a departure under either 18 U.S.C. §§ 3553(e) or 3553(f). Melendez v. United States, 518 U.S. 120,
125-26 (1996). These are the exclusive means by which a court may depart below the statutory
minimum. United States v. Stewart, 306 F.3d 295, 331 n.21 (6th Cir. 2002). Section 3553(e)
provides that “[u]pon motion of the Government, the court shall have the authority to impose a
sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s
substantial assistance in the investigation or prosecution of another person who has committed an
offense.” Section 3553(f), the so-called “safety valve” provision, is not applicable if the defendant
has more than one criminal history point, rendering it unhelpful to McIntosh. 18 U.S.C.
§ 3553(f)(1); United States v. Penn, 282 F.3d 879, 881 (6th Cir. 2002).
        Downward departures may also be granted pursuant to U.S.S.G. § 5K1.1, which provides,
in pertinent part: “[u]pon motion of the government stating that the defendant has provided


         2
            The calculation contained in the presentencing report in order to reach this sentence is as follows: McIntosh
first received a base offense level of 28 for possession of cocaine base in violation of 21 U.S.C. § 841(a). Pursuant to
U.S.S.G. § 2D1.1(b)(1) of the 2004 Sentencing Guidelines, two levels were added for possession of the two firearms,
resulting in an adjusted offense level of 30. This offense level served as the controlling guideline because it was higher
than the adjusted offense level for the § 922(g)(1) violation (which was 26). McIntosh then received a three-level
reduction for acceptance of responsibility, bringing him down to an adjusted offense level of 27. When paired with a
Criminal History Category of IV, this resulted in the applicable 100- to 125-month Guidelines range.
         3
             This was a different AUSA than was present at the plea hearing.
No. 05-2525               United States v. McIntosh                                                           Page 4


substantial assistance in the investigation or prosecution of another person who has committed an
offense, the court may depart from the guidelines.” As the Supreme Court has explained, however,
a departure motion made specifically under § 5K1.1 does not authorize a departure below the
statutory minimum. Melendez, 518 U.S. at 124. Thus, given the inapplicability of § 3553(f) in this
case, the sole means by which the district court could have given McIntosh a 4sentence below the
statutory minimum is if the government moved for a § 3553(e) departure. Importantly, the
Melendez Court made clear that it “[did] not mean to imply . . . that specific language (such as that
quoted in text) or, on the other hand, an express reference to § 3553(e) is necessarily required before
a court may depart below the statutory minimum.” 518 U.S. at 126 n.5. “But the Government must
in some way indicate its desire or consent that the court depart below the statutory minimum before
the court may do so.” Id.
                                                          B.
        At the plea hearing, the government failed to object to the district judge’s finding that he
could impose a sentence below the statutory minimum. Therefore, we review the district court’s
decision to depart below the statutory minimum for plain error. See United States v. Barajas-Nunez,
91 F.3d 826, 830 (6th Cir. 1996). “A ‘plain error’ is an error that is clear or obvious, and if it affects
substantial rights, it may be noticed by an appellate court.” Id. We generally “correct a plain
forfeited error that affects substantial rights only if the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Id. (internal citations, quotation marks, and
punctuation omitted).
       Here, we do not even get past the first step of plain error review, as we find that no error
occurred, “plain or otherwise.” United States v. Hynes, 467 F.3d 951, 957 (6th Cir. 2006). First,
as noted above, the plea agreement stated that the district judge had “complete discretion” to
determine the extent of the downward departure. Short of actually citing to § 3553(e)—which
Melendez does not require—we cannot imagine how much more explicit the government could have
been in consenting to a below-statutory minimum sentence than by giving the district court
“complete discretion” in determining the appropriate reduction in sentence.
         Notwithstanding this potent language, the government contends that the phrase “complete
discretion” must be read within the confines of § 5K1.1, which, as noted above, does not give a
district court the discretion to depart below the statutory minimum. At best, this presents us with
an ambiguity, and any ambiguities in a plea agreement must be construed   against the government.
United States v. Randolph, 230 F.3d 243, 248 (6th Cir. 2000).5 Admittedly, the government’s
argument has some merit, as paragraph 11 of the plea agreement references § 5K1.1, but not
§ 3553(e). But even if we were to accept this argument, it would not change our result. After all,
we cannot view the plea agreement in a vacuum. Rather, in order to determine the scope of the
whole agreement, we must also consider the plea hearing transcript. See City of New York v.

         4
          We briefly point out that McIntosh points out that “[t]he plea agreement referenced Section 5K1.1 and Rule
35(b) together,” and contends that “[s]ince Rule 35(b) authorizes imposition of a sentence below a statutory minimum,
the Court was authorized to impose the lower sentence.” However, Rule 35(b)—which authorizes below-statutory
minimum departures based on a defendant’s substantial assistance—is only applicable to resentencing after the original
sentencing. See United States v. Bureau, 52 F.3d 584, 594 (6th Cir. 1995) (noting the “temporal difference” between
§ 5K1.1, which applies at the original sentencing, and Rule 35(b), which applies after a sentence has been imposed).
Because this is the first time McIntosh is being sentenced for this offense, we need not consider Rule 35(b) in our
analysis.
         5
          It is perhaps worth noting that in Melendez, the petitioner contended his plea agreement was ambiguous with
respect to whether the government was required to move the district court to depart below the statutory minimum.
Because this argument was not raised until the petitioner’s reply brief, however, the Supreme Court declined to address
it. 518 U.S. at 125 n.2.
No. 05-2525           United States v. McIntosh                                               Page 5


Liberman, No. 85 Civ. 4958, 1988 WL 7788, *7 (S.D.N.Y. Jan. 25, 1988); cf. Shepard v. United
States, 544 U.S. 13, 16 (2005) (holding that in order to determine the character of the crime to which
a defendant has pled guilty in a prior proceeding, the later court may look to sources such as the
transcript of plea colloquy).
        As already explained, the government failed to object at the plea hearing when the district
judge stated that it was within his discretion to depart below the statutory minimum and confirmed
the presence of the agreement. Although the government objected at the sentencing hearing, this
objection came too late. When McIntosh pled guilty at the plea hearing, he did so while under the
impression that he would be eligible for a below-statutory minimum sentence. To hold otherwise
would bind McIntosh to a plea that was not knowingly and voluntarily made. See Brady v. United
States, 397 U.S. 742, 748 (1970) (holding that a defendant must have “sufficient awareness of the
relevant circumstances and likely consequences” of his guilty plea). From McIntosh’s perspective,
there was no question in his mind that under the terms of his plea agreement, he would be eligible
for a sentence under five years, should the district judge choose to impose one. See United States
v. Stubbs, 279 F.3d 402, 412 (6th Cir. 2002) (“[I]t is reasonably probable that but for the
misinformation as to Defendant’s proper statutory sentence, Defendant would not have pleaded
guilty.”), overruled on other grounds by Harris v. United States, 536 U.S. 545, 558-60 (2002).
         To be sure, nowhere in the plea agreement, plea hearing transcript, or downward departure
motion is there a cite to § 3553(e) or a quote from its text. But Melendez does not require such
specificity. Had the government objected at the plea hearing when the district judge stated that he
had the discretion to depart below the statutory minimum, our result might be different. But as
evidenced by his statements, the district judge obviously read the plea agreement to give him the
discretion to impose a sentence below the statutory minimum, and the government did not contest
this interpretation. Because the district judge’s conclusion that he could depart below the statutory
minimum became part of the plea agreement, to which the government was a party, the government
is now estopped from arguing that the district court erred. The contents of the plea agreement and
plea hearing compel us to find that “the Government . . . indicate[d] its desire or consent that the
court depart below the statutory minimum.” Melendez, 518 U.S. at 126 n.5.
       For the reasons above, we AFFIRM McIntosh’s sentence.
