United States v. Callier

565 F. App'x 423
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 1, 2014
Docket12-3976
StatusPublished
Cited by6 cases

This text of 565 F. App'x 423 (United States v. Callier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Callier, 565 F. App'x 423 (6th Cir. 2014).

Opinion

SUHRHEINRICH, Circuit Judge.

I.

Defendant Dominique Callier pled guilty to one count of conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962. He now appeals his sen[424]*424tence of 37 months’ imprisonment to run consecutively to a sentence imposed in state court. The government moves to dismiss the appeal, contending that Callier has waived his right to appeal the sentence. We grant the motion.

II.

Defendant was charged (Count 1), based on his involvement in a gang known as LSP, which engaged in acts involving murder, robbery, witness tampering, retaliation, and drug trafficking in the Northern District of Ohio. He entered into a written Rule 11(c)(1)(B) plea agreement with the government, pleading guilty to the indictment. In the plea agreement, the parties agreed that Defendant’s base offense level under U.S.S.G. § 2E1.1(a) was 19. The parties agreed that they did not have an agreement about Defendant’s criminal history category and that it would be determined by the court after preparation of the presentence report. The parties further agreed that the district court would decide the Guideline sentencing range at sentencing. The plea agreement also “allow[ed] the defendant to reserve the right to seek to have [the federal] sentence run concurrently with a state sentence he is presently serving pursuant to U.S.S.G. § 5G1.3 and ... [18 U.S.C. §] 3584.”

At the change of plea hearing, the government read the entire plea agreement. This included the waiver of appeal provision. It states as follows:

Waiver of Appellate Rights. Defendant acknowledges that having been advised by counsel of Defendant’s 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. Defendant expressly and voluntarily waives those rights, except as specifically reserved below. Defendant reserves the right to appeal: (a) any punishment in excess of the statutory maximum; (b) any sentence to the extent it exceeds the maximum of the sentencing range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable by the Court.

His plea also reserved the right to appeal based on ineffective assistance of counsel or prosecutorial misconduct.

Defendant confirmed that he understood the terms of the written plea agreement and that he had no questions. Based on his plea colloquy, the district court found that Defendant knowingly, voluntarily, and willingly pleaded guilty.

At sentencing, the district court found that the base offense level was 19. Following a three-level adjustment for acceptance of responsibility, the total offense level was 16. The district found that Defendant’s prior criminal history warranted a Category V designation, resulting in an adjusted Guidelines range of 41-51 months. The district court varied downward to offense level 15, equivalent to a range of 37-46 months, and sentenced Defendant to 37 months’ imprisonment. Explaining its conclusions, the district court noted that Defendant had “quite a record.” The court stated that it “look[ed] at a couple of things,” including Defendant’s “background” and “the fact that you’re trying to turn your life around now,” for which Defendant received a credit for acceptance of responsibility.

In accordance with the terms of the plea agreement, Defendant sought a concurrent sentence under U.S.S.G. § 5G1.3 and 18 [425]*425U.S.C. § 3584. The government requested a consecutive sentence, because Defendant had a Criminal History Category V designation by the time he was 21 years old. The district court ruled that the federal sentence would run consecutively to the state sentence, “[b]ecause of the nature of your background and the nature of the offenses in this case.”

Defendant filed this appeal, asserting that the district court erred in imposing a consecutive sentence under U.S.S.G. § 5G1.3 because (1) it did not discuss the § 3553(a) factors, and (2) the offense giving rise to the state sentence was considered relevant conduct in the plea agreement. As noted, the government filed a motion to dismiss, based on the waiver provision in the plea agreement.

III.

We review de novo whether a defendant waived his right to appeal his sentence in a valid plea agreement. United States v. Smith, 344 F.3d 479, 483 (6th Cir.2003). If the waiver is clear, we enforce it, and do not review the appeal, except in limited circumstances. Id. If any provisions are unclear or ambiguous, we construe them against the government. United States v. Fitch, 282 F.3d 364, 367-68 (6th Cir.2002).

The government argues that because Defendant’s sentence did not exceed the statutory maximum (240 months) or the maximum Guidelines sentence, the appellate waiver provision of Defendant’s plea agreement precludes him from appealing his sentence. Defendant responds that he did not waive his right to appeal the district court’s imposition of a consecutive sentence, relying on United States v. Bowman, 634 F.3d 357 (6th Cir.2011). There we allowed the defendant’s direct appeal because the waiver provision expressly barred appealing a within-guidelines sentence but made no reference to the district court’s imposition of a consecutive sentence. The Bowman plea agreement stated “in general terms, that [the defendant] may not challenge on direct appeal ‘any sentence which is at or below the maximum of the guideline range as determined by the Court.’ ” Id. at 361. Because this language did not specifically refer to U.S.S.G. § 5G1.3(c) or the state sentence, we held that it did not bar a challenge to the district court’s imposition of consecutive sentences. Id. at 360-61. See also United States v. Denton, 557 Fed.Appx. 506, 506-07 (6th Cir.2014) (per curiam) (addressing merits of the defendant’s argument regarding consecutive sentences on appeal where the plea agreement waived the defendant’s right to appeal “unless [the defendant’s] sentence was above the guidelines range,” because as in Bowman, “the Government could have included a waiver of the right to appeal a consecutive sentence in the plea agreement”).

But the language of Defendant’s plea agreement is different. Here, the plea agreement expressly provides that Defendant was apprised of his rights “to appeal the conviction or sentence in this case, including the appeal right conferred by 18 U.S.C. § 3742,”1 and that he “expressly [426]

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Bluebook (online)
565 F. App'x 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-callier-ca6-2014.