United States v. Andrew Wirth

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 13, 2023
• Docket: 22-3153
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0030n.06

No. 22-3153

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 13, 2023 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF ANDREW WIRTH, ) OHIO Defendant-Appellant. ) OPINION ) )

Before: GRIFFIN, WHITE, and THAPAR, Circuit Judges.

GRIFFIN, Circuit Judge.

Defendant Andrew Wirth pleaded guilty to a sex crime. In his plea agreement, he waived

most of his appellate rights, but he now seeks to appeal the district court’s imposition of a sentence

consecutive to an unrelated state conviction. Because he waived the right to appeal this aspect of

his sentence, we dismiss this appeal.

I.

Andrew Wirth was charged with sex trafficking a minor, in violation of 18 U.S.C. § 1591.

Wirth pleaded guilty pursuant to a plea agreement. As part of that agreement, Wirth waived all

rights to appeal his conviction and sentence, reserving only “the right to appeal: (a) any

punishment in excess of the statutory maximum; or (b) any sentence to the extent it exceeds the

maximum of the sentencing imprisonment range determined under the advisory Sentencing

Guidelines in accordance with the sentencing stipulations and computation in th[e] agreement, No. 22-3153, United States v. Wirth

using the Criminal History Category found applicable by the Court” and “claims of ineffective

assistance of counsel or prosecutorial misconduct.” Thereafter, the district court imposed a within-

Guidelines 168-month sentence, consecutive to an unrelated state sentence. Wirth now appeals.

II.

“It is well settled that a defendant ‘may waive any right, even a constitutional right, by

means of a plea agreement,’” so long as that agreement is made knowingly and voluntarily. United

States v. Toth, 668 F.3d 374, 377 (6th Cir. 2012) (quoting United States v. Calderon, 388 F.3d

197, 199 (6th Cir. 2004)). When, as here, a defendant does not challenge the validity of the appeal

waiver, we review his appellate claims de novo to determine if they fall within the scope of the

waiver. Id. at 378.

Wirth argues that he may appeal the district court’s imposition of a consecutive, rather than

concurrent, sentence because he did not specifically waive that right. He relies on United States

v. Bowman, in which Bowman waived his right to appeal “any sentence which is at or below the

maximum of the guideline range as determined by the Court.” 634 F.3d 357, 361 (6th Cir. 2011).

Because this language waived only the right to challenge a within-Guidelines sentence, and did

not refer to U.S.S.G. § 5G1.3(c) (which governs the imposition of consecutive or concurrent

sentences) or the relevant state sentence, we held that it did not bar an appeal challenging the

court’s imposition of a consecutive sentence. Id. at 360–61.

But Wirth’s plea agreement contains an appellate waiver that is much broader than

Bowman’s. Where Bowman’s waiver barred only his right to appeal a within-Guidelines sentence,

Wirth waived all rights to challenge his conviction or sentence except if he was sentenced above

-2- No. 22-3153, United States v. Wirth

the statutory maximum (life) or the Guidelines range (168 months).1 “We have, on multiple

occasions, declined to follow Bowman in cases involving broad waivers like the one [Wirth]

made,” concluding instead that the “appeal is barred” when the defendant’s arguments are outside

the rights explicitly reserved in the plea agreement. United States v. Hollins-Johnson, 6 F.4th 682,

683–84 (6th Cir. 2021) (order). Indeed, we have held that, when a defendant waives all appellate

rights except the specific rights reserved here, he has waived his right to appeal the consecutive

nature of his sentence. United States v. Callier, 565 F. App’x 423, 425–26 (6th Cir. 2014). The

same is true now: Wirth broadly waived his right to appeal his sentence, save for narrow

exceptions—none of which encompass the claim he attempts to pursue here.

III.

For these reasons, we dismiss the appeal.

1 The consecutive sentence did not violate the United States Sentencing Guidelines, which permitted the district court to impose a federal term of imprisonment consecutive to Wirth’s state term of imprisonment in order to “achieve a reasonable punishment for the [federal] offense.” U.S.S.G. § 5G1.3(d). -3-