                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 11a0188n.06

                                              No. 09-3505                                   FILED
                                                                                         Mar 29, 2011
                             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
JESSE CECENA,                                                COURT FOR THE NORTHERN
                                                             DISTRICT OF OHIO
          Defendant-Appellant.


                                                         /

Before:          MARTIN, BOGGS, and COOK, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Jesse Cecena appeals his sentence at the lower

bound of his properly calculated advisory guidelines range after pleading guilty to conspiracy to

distribute marijuana. However, because Cecena waived his right to appeal in his plea agreement,

we decline to consider the issues raised and dismiss the appeal.

                                                    I.

          Cecena pled guilty to conspiracy to distribute marijuana in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(A). In his plea agreement, Cecena stipulated that he worked with Sergio Durazo to

deliver over 10,000 kilograms but less than 30,000 kilograms of marijuana to the Akron, Ohio area.

          The plea agreement also contained a waiver of Cecena’s right to appeal his sentence under

18 U.S.C. § 3742 and to challenge the sentence imposed through post-conviction proceedings.

Cecena reserved the right to appeal only “(a) any punishment in excess of the statutory maximum;
No. 09-3505
United States v. Cecena
Page 2

(b) any sentence to the extent it exceeds the maximum of the sentencing range determined under the

advisory sentencing guidelines as contemplated in [his] plea agreement; and (c) issues relating to

criminal history calculations.” Before accepting the plea, the district court asked Cecena if he

understood that, with certain very limited exceptions, he was giving up his right to appeal his

conviction. Cecena responded in the affirmative.

       The plea agreement expected that Cecena would have a base offense level of thirty-six and

the United States agreed to recommend a three-level reduction for acceptance of responsibility. The

agreement also stated that “[e]xcept for Acceptance of Responsibility, the parties agree that no other

offense level adjustments should apply.”

       The plea contained no agreement regarding Cecena’s criminal history category. At the

change of plea hearing, the parties expected that Cecena would fall into criminal history category I.

However, the presentence report found that Cecena fell into criminal history category III.

       The district court followed the recommendations in the presentence report and granted

Cecena a three-level reduction for acceptance of responsibility. With an adjusted offense level of

thirty-three and criminal history category of III, Cecena’s advisory guidelines range was fourteen to

seventeen and one-half years.

       Cecena argued that his criminal history score overstated his past criminal conduct, but did

not object to the calculation or underlying offenses found in the presentence report. Cecena also

argued that his role was relatively minor and he was not the decisionmaker in the organization. The

district court declined to depart from the guidelines range on the basis that Cecena’s criminal history

was overrepresented or on the grounds that he had a minor role in the conspiracy. However, the
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United States v. Cecena
Page 3

district court stated that because Cecena had a relatively minor role, a sentence at the bottom end of

the advisory guidelines range was appropriate. The district court sentenced Cecena to fourteen years’

imprisonment.

       Cecena argues that his sentence is unreasonable because his criminal history category

substantially overrepresented his prior criminal history and because his base offense level should

have been reduced in light of his minor role in the criminal activity.

                                                 II.

       We review de novo whether a criminal defendant waived his or her right to appeal his or her

sentence in a valid plea agreement. United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005).

Criminal defendants may waive any right, including the right to appeal, in a plea agreement. Id.;

United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004). “When a [d]efendant waives his right

to appeal his sentence in a valid plea agreement, this Court is bound by that agreement and will not

review the sentence except in limited circumstances.” United States v. Smith, 344 F.3d 479, 483 (6th

Cir. 2003) (alteration in original) (internal quotation marks and citation omitted).

       Cecena does not argue that his plea agreement is invalid, and does not even respond to the

United States’s argument that he has waived his right to appeal. Additionally, the record indicates

that Cecena entered the plea agreement knowingly and voluntarily. During the plea colloquy the

district court specifically asked Cecena if he understood the waiver provision and Cecena responded

in the affirmative. Therefore, we find that Cecena validly waived his right to appeal.

       Although Cecena reserved three grounds for appealing the sentence, he does not appeal on

any of those grounds. Cecena’s sentence was not imposed in excess of the statutory maximum.
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Page 4

Cecena’s sentence was not above his advisory guidelines range as contemplated under the plea

agreement. And, Cecena is not appealing the calculation of his criminal history.

       At the sentencing hearing, Cecena did not object to the presentence report’s findings or the

district court’s determination of his criminal history. Instead, the colloquy at the sentencing hearing

shows that counsel argued the overrepresentation issue in support of his argument that the district

court should exercise its discretion to depart downward. Specifically, counsel stated that he had no

objection to the calculation of Cecena’s criminal history in the presentence report. Therefore,

Cecena is not appealing the calculation of his criminal history. Instead, Cecena is appealing the

district court’s decision not to depart downward, which is generally not reviewable on appeal, see

United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008), and which has been specifically

waived under the terms of his plea agreement.

       Similarly, even if Cecena should have been placed in criminal history category I, his sentence

is still not above the advisory guidelines range contemplated by the plea. The plea agreement placed

Cecena at offense level thirty-six, with a possible three-level reduction for accepting responsibility.

Thus, even with the lowest offense level contemplated by this agreement—level thirty-three—and

a criminal history category of I, Cecena’s advisory guidelines range would have been eleven years

and three months to fourteen years. Cecena’s sentence of fourteen years falls within that range.

Therefore, even if we were to construe the plea agreement as containing an expectation that Cecena

would be in criminal history category I, Cecena still did not receive a sentence above the high end

of the advisory guidelines range contemplated by his plea agreement. Because Cecena knowingly
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Page 5

and voluntarily waived his right to appeal, and he is not appealing on any of the three grounds on

which he reserved the right to appeal, we dismiss the appeal.

                                               III.

       We therefore dismiss the appeal because Cecena appeals only on grounds expressly waived

in his plea agreement.
