                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0303n.06

                                           No. 08-1866                                  FILED
                                                                                     May 17, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
RAYMOND MCMICHAEL,                                        )   THE EASTERN DISTRICT OF
                                                          )   MICHIGAN
       Defendant-Appellant.                               )
                                                          )
                                                          )


       Before: GIBBONS, ROGERS, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Defendant Raymond McMichael pled guilty to one count of

conspiring to manufacture and distribute marijuana. The district court imposed a 17-year sentence,

which McMichael now appeals. We reject his arguments, and affirm.

                                                 I.

       In 1970, McMichael was arrested while trying to enter the United States from Mexico while

carrying eight pounds of marijuana. He pled guilty to one felony count of failure to pay the transfer

tax on marijuana, and received a three-year sentence. In 1978, President Carter unconditionally

pardoned McMichael for the conviction.

       Sometime in 2003, McMichael and a few partners commenced a marijuana-growing

enterprise that allegedly generated millions of dollars in sales. Federal agents learned of the

enterprise in November 2004 and arrested McMichael shortly thereafter.
No. 08-1866
United States v. McMichael

       The government indicted McMichael under 21 U.S.C. §§ 841 and 846 for conspiracy to

manufacture and distribute over 1000 plants of marijuana. Those statutes normally require a 10-year

minimum sentence, but the minimum doubles to 20 years if the offender has “a prior conviction for

a felony drug offense[.]” Id. § 841(b)(1)(A). The government notified McMichael that his 1970

conviction subjected him to the 20-year mandatory minimum. McMichael filed a motion, arguing

that his 1970 conviction could not be used to enhance the minimum because he was pardoned for

that offense. The district court denied the motion.

       McMichael’s trial began in May 2005. After three days of testimony, however, he agreed

to plead guilty. At his plea hearing, McMichael said that he understood he was facing a 20-year

mandatory minimum. He also agreed to waive his right to challenge the government’s use of his

pardoned conviction to increase his minimum sentence. In return, the government agreed to give

McMichael an opportunity to cooperate in an ongoing investigation, and to thereafter consider filing

a motion under 18 U.S.C. § 3553(e), which would allow the court to sentence McMichael below the

20-year minimum. After confirming these terms with McMichael, the court accepted his plea.

       The government made its § 3553(e) motion at McMichael’s sentencing hearing. But the

parties disputed the effect of the motion. The government contended that the court could depart

below the 20-year minimum based only on factors relating to McMichael’s assistance. Accordingly,

the government recommended a 17-year sentence—the 20-year minimum minus a three-year

reduction for McMichael’s cooperation.

       In response, McMichael himself said that he was “a little confused right now” because he

“thought that the mandatory minimums were gone” as a result of the government’s motion. Snt’g

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No. 08-1866
United States v. McMichael

Hr’g Tr. at 14. He also said that “this isn’t the way I thought it was” and “now [we are] talking

twenty years and I’m just really in shock right now.” Snt’g Hr’g Tr. at 15. His attorney then argued

that the district court was free to disregard the mandatory minimum altogether, and suggested a

sentence within McMichael’s otherwise-applicable Guidelines range, which was 87 to 108 months.

       The court adopted the government’s view of the § 3553(e) motion, concluding that the 20-

year minimum remained the baseline for McMichael’s sentence. The court granted McMichael a

three-year reduction and sentenced him to 17 years’ imprisonment.

       This appeal followed.

                                                 II.

       McMichael argues that he should have received a shorter sentence in light of his age and

nonviolent past. But McMichael’s statutory minimum precluded consideration of those factors.

Contrary to McMichael’s arguments at sentencing, § 3553(e) does not eliminate a statutory

minimum; it only permits imposition of a sentence below the minimum to reflect the defendant’s

substantial assistance, not the plenary sentencing factors that a court would normally consider under

§ 3553(a). See United States v. Bullard, 390 F.3d 413, 416-17 (6th Cir. 2004) (“[A] district court

may depart below the minimum sentence set by Congress only to reflect substantial assistance by

the defendant” (internal quotation marks omitted)). Here, the district court began its analysis with

McMichael’s 20-year minimum, and then granted a 3-year reduction from that minimum based on

the value of McMichael’s assistance. That was an entirely proper application of § 3553(e).

       Our conclusion, McMichael suggests, renders his guilty plea “involuntary and illusory[.]”

Reply Br. at 8. This suggestion is presumably based on the government’s statement at his plea

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No. 08-1866
United States v. McMichael

hearing that the § 3553(e) motion would “give the Court the authority to strike the 20 year statutory

minimum for purposes of such substantial assistance reduction.” Plea Hr’g Tr. at 23. But the only

remedy available to McMichael for an involuntary plea would be withdrawal of that plea, and

McMichael’s counsel expressly disclaimed that remedy at oral argument. We therefore will not

review the argument.

       McMichael otherwise argues that his pardoned conviction cannot be used to increase his

statutory-minimum sentence. But McMichael expressly waived this argument at his plea hearing,

so we will not review it. See United States v. McGilvery, 403 F.3d 361, 362-63 (6th Cir. 2005).

       The district court’s judgment is affirmed.




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