NOT RECOMMENDED FOR PUBLICATION File Name: 23a0050n.06
Case No. 22-1240
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Jan 24, 2023 ) UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF JOSHUA LOUIS RUPP, ) MICHIGAN Defendant-Appellant. ) ) OPINION
Before: STRANCH, MURPHY, and DAVIS, Circuit Judges.
MURPHY, Circuit Judge. Pretending to be a licensed securities broker, Joshua Rupp
defrauded his in-laws and friends of a total of $2.7 million. Among other tricks, Rupp downloaded
an app onto his victims’ phones so that they could monitor “dummy” accounts showing excellent
(but fictitious) gains. Rupp pleaded guilty to securities fraud. During plea negotiations, the
government estimated that his guidelines range would be about 10 to 12 years’ imprisonment. Yet
the district court calculated his range to be significantly higher and sentenced him to 16 years.
Rupp argues that he entered an unknowing and involuntary plea because his decision to
plead guilty turned on the government’s mistaken estimate of his guidelines range. Rupp next
argues that the district court should not have increased his guidelines range with an enhancement
that covers those who use “sophisticated means” to commit fraud. He lastly argues that the court
imposed a substantively unreasonable sentence. But his plea agreement and plea colloquy both No. 22-1240, United States v. Rupp
show that Rupp knew that he could not void his plea simply because the district court chose a
higher-than-expected guidelines range. Rupp also used plenty of “sophisticated” means, including
the creation of the dummy accounts. And his plea agreement waived his right to bring a
substantive-reasonableness challenge to his sentence. We affirm.
I
Rupp grew up in a loving home in western Michigan. By 2011, he appeared to be on a
relatively successful path both personally and professionally. He had married his wife and had
two kids. He had also obtained a builder’s license and started a home-building company in Texas.
In that year, Rupp and his family returned to Michigan. While back in his home state, he began
working as an RV salesperson.
Things changed significantly in 2015 when Rupp turned to securities fraud. He swindled
family and friends alike of millions of dollars over the next four years. Rupp targeted his wife’s
parents as his first victims. His in-laws initially gave him a small sum after he led them to believe
that he had connections with a fictitious broker at an established financial-services firm. Rupp’s
father-in-law later allowed Rupp to manage the substantially more money in his IRA (about
$465,000). Rupp’s in-laws also helped to convince his wife’s grandmother to invest with him.
Rupp almost took $1.2 million from her, but the bank suspected Rupp of elder fraud and placed a
hold on the check that she had written. When his in-laws went to the bank to discuss the situation,
they learned that Rupp had withdrawn all of the funds from his father-in-law’s IRA. Rupp wasted
all of these funds, causing his wife’s parents to suffer significant tax consequences in the process.
His marriage did not survive his fraud.
That fraud soon expanded outside his family. He would promote his (fake) qualifications
to people that he met at places like his family’s church. Once these friends agreed to make
2 No. 22-1240, United States v. Rupp
investments with him, he would install a trading app on their phones to allow them to track their
investments. The app showed extraordinary gains from week to week, which led his victims to
spread the word about Rupp’s investment prowess. Like Rupp’s father-in-law, some of these
investors gave Rupp access to their retirement accounts, including accounts worth over $400,000.
Apart from the app that he downloaded onto his victims’ phones to monitor the “dummy
accounts” that he had created, Rupp engaged in many other fraudulent acts to persuade them to
invest with him. Plea Agreement, R.6, PageID 15–17. He claimed to be a licensed broker. (He
was not.) He claimed to work for established financial-service firms. (He did not.) He claimed
that the victims could not lose the principal that they entrusted to him because of the nature of his
investments. (They lost nearly all of it.) And he showed his victims many authentic-looking
documents, including a broker’s license and account statements with letterhead and logos from the
established financial-service firms. (He had forged these documents.)
Ultimately, Rupp’s mounting investment losses and growing addiction to cough syrup took
a toll on his mental health. His fraud scheme unraveled when he suffered a mental breakdown one
day in late July 2019. After overconsuming cough syrup, a naked Rupp trespassed into the homes
of strangers, assaulted the residents, and engaged in other bizarre behavior. He fled in his car from
one of the homes, swerved into an approaching vehicle, and hit its trailer. The police had to use a
taser to subdue him. While in custody, Rupp admitted to his fraud.
All told, Rupp took more than $2.7 million from 19 people. He spent at least $500,000 of
this money on vacations, groceries, and other personal expenses. He frittered away the rest on bad
stock trades.
The government charged Rupp with securities fraud in violation of 18 U.S.C. § 1348(1).
He pleaded guilty. As part of his plea agreement, Rupp acknowledged that the parties had not
3 No. 22-1240, United States v. Rupp
reached a consensus on how to calculate his guidelines range. He also recognized that neither the
government nor his counsel nor even the court could make a “binding prediction or promise”
concerning the length of the court’s sentence and that he could not withdraw his plea even if the
court imposed the statutory maximum. Plea Agreement, R.6, PageID 22. And he agreed to waive
his right to appeal except on a few specified grounds, including that his plea was unknowing and
involuntary and that the district court had miscalculated his guidelines range.
At Rupp’s plea hearing, a magistrate judge found that he had entered a knowing and
voluntary guilty plea. Before doing so, the judge confirmed that Rupp understood the nature of
the charges and the potential punishment. Rupp recognized that only the district court could
determine his guidelines range. He also conceded that nobody had promised him what sentence
the court would choose. And he agreed that he could not withdraw his plea if it turned out that the
court chose a sentence longer than he anticipated.
Rupp’s presentence report recommended that the court impose four enhancements to his
base offense level. It recommended a two-level enhancement because Rupp had used
“sophisticated means” to commit the fraud. U.S.S.G. § 2B1.1(b)(10)(C). It recommended an 18-
level enhancement because of the amount of the loss. Id. § 2B1.1(b)(1)(J). It recommended a
four-level enhancement because Rupp’s crime had caused “substantial financial hardship” to at
least five victims. Id. § 2B1.1(b)(2)(B). And it recommended a four-level enhancement because
Rupp’s crime had involved “securities law” and he qualified as an “investment adviser.” Id.
§ 2B1.1(b)(20)(A)(iii).
At sentencing, Rupp’s counsel argued against the sophisticated-means enhancement on the
ground that its application, when combined with the other enhancements, would result in improper
“double counting” by punishing him twice for the same conduct. Sentencing Hr’g Tr., R.45,
4 No. 22-1240, United States v. Rupp
PageID 213. He reasoned that violation of the securities laws is always sophisticated. The court
disagreed. It found that Rupp had used sophisticated means by creating “false documents” to
defraud his victims. Id., PageID 222. It further noted that this enhancement did not overlap with
his enhancement for violating the securities laws because not all such frauds are sophisticated. Id.
Adopting the presentence report’s calculations, the court concluded that Rupp’s guidelines
range was 168 to 210 months’ imprisonment. When speaking to the court, Rupp suggested that
the report’s recommended range had caught him “off guard” because the government in plea
negotiations had predicted that his range would be 10 to 12 years. Id., PageID 237. The court
nevertheless chose a sentence of 192 months’ imprisonment. This choice led Rupp to interrupt: “I
just don’t agree with your sentence.” Id., PageID 247. He opined that “child sex molesters and
rapists” serve shorter sentences and that his victims had asked him to invest their money. Id.
Describing the sentence as “ridiculous,” Rupp added: “I wouldn’t have taken this plea agreement
if I knew you were going to give me more than 12 years. I took the plea agreement based on [the
prosecutor] sending over the thing that said it was 10 to 12 years, those are my guidelines, so I’m
here today because of that.” Id., PageID 248. When the court told him he would have the
opportunity to appeal, he responded: “Oh, I will.” Id.
II
Rupp raises three arguments on appeal. He argues that his guilty plea was not knowing
and voluntary. He argues that the district court should not have used the sophisticated-means
enhancement. And he argues that the court imposed a substantively unreasonable sentence.
1. Knowing and Voluntary Plea. Rupp first claims that he entered an unknowing and
involuntary plea. Specifically, he says that his decision to plead guilty rested on the government’s
5 No. 22-1240, United States v. Rupp
prediction during their plea negotiations that his guidelines range would fall between 10 and 12
years—well below the range that the district court determined (14 to 17.5 years).
We start with two procedural issues. The first: our standard of review. Generally, we
review de novo a district court’s conclusion that a defendant knowingly pleaded guilty, and we
review for clear error any factual findings underlying this conclusion. See United States v.
Catchings, 708 F.3d 710, 716 (6th Cir. 2013); United States v. Walker, 160 F.3d 1078, 1095–96
(6th Cir. 1998). Here, however, the government argues that Rupp never asserted in the district
court that his plea had been unknowing, and it points out that we review unpreserved arguments
of this type under the deferential plain-error test. See United States v. Hobbs, 953 F.3d 853, 857
(6th Cir. 2020); United States v. Swinney, 728 F. App’x 485, 487 (6th Cir. 2018). Rupp counters
that he preserved the argument with his comment that he would not have pleaded guilty if he had
known his sentence would exceed the 12 years that the government had estimated. We need not
decide whether Rupp adequately raised this claim because our standard of review does not matter
to the outcome. We will assume that the normal standard applies.
The second: the record on appeal. Rupp’s argument rests on discussions from the parties’
plea negotiations that he did not introduce into evidence. At most, he made a passing (unsworn)
statement that the prosecutor had sent him a letter identifying the government’s estimate of his
guidelines range as 10 to 12 years’ imprisonment. Sentencing Hr’g Tr., R.45, PageID 237. We
typically limit ourselves to the record on appeal and save for collateral review arguments that
require outside-the-record evidence. See Fed. R. App. P. 10(a); United States v. Ferguson, 669
F.3d 756, 762–63 (6th Cir. 2012); United States v. Wagner, 382 F.3d 598, 615 n.4 (6th Cir. 2004).
Yet the government concedes that, during plea negotiations, it estimated that Rupp’s offense level
would be 30 and his criminal history category would be III—estimates that would produce a
6 No. 22-1240, United States v. Rupp
guidelines range of 121 to 151 months. Appellee’s Br. 21–22; U.S.S.G. Ch. 5 Pt. A. But Rupp’s
offense level turned out to be 32 and his criminal history category turned out to be IV. Because
the parties do not dispute the basic facts, we need not decide how this lack of evidence should
affect things.
With these issues to the side, we turn to the merits. When defendants plead guilty, they
waive many constitutional rights, including the right to a jury trial and the right to confront
accusers. See Parke v. Raley, 506 U.S. 20, 29 (1992). So the Constitution and the Federal Rules
of Criminal Procedure place limits on a district court’s ability to accept a plea. The Due Process
Clause prohibits defendants from waiving these rights unless they do so in a “knowing” and
“voluntary” manner. Id. at 28–29; see Brady v. United States, 397 U.S. 742, 748 (1970). And
Rule 11 requires a court to ask a series of questions to defendants at a plea hearing to ensure their
knowledge of several items. See United States v. Day, 2022 WL 17547518, at *2 (6th Cir. Dec.
9, 2022); United States v. Webb, 403 F.3d 373, 378–79 (6th Cir. 2005). Courts must ensure, among
other things, that they know of their potential punishments. See Fed. R. Crim. P. 11(b)(1).
When defendants receive a sentence higher than the one that they anticipate, they often
argue that they did not enter a knowing and voluntary plea because their decision to plead guilty
rested on their mistaken sentencing prediction. We have regularly rejected this type of challenge.
See United States v. Davis, 796 F. App’x 886, 890 (6th Cir. 2019); United States v. Contreras-
Armendariz, 207 F. App’x 594, 596–97 (6th Cir. 2006); United States v. Hernandez, 1999 WL
486620, at *3–5 (6th Cir. July 1, 1999) (per curiam); Gessa v. United States, 1993 WL 72487, at
*1 (6th Cir. Mar. 15, 1993) (order); see also United States v. Lewis, 800 F. App’x 353, 358–59
(6th Cir. 2020); United States v. Stephens, 906 F.2d 251, 253 (6th Cir. 1990). When the plea
agreement or plea colloquy explains to a defendant that any earlier sentencing estimate represented
7 No. 22-1240, United States v. Rupp
only a nonbinding prediction, the defendant does not enter an unknowing and involuntary plea
merely because the “prediction” does not come true. Davis, 796 F. App’x at 890 (quoting Stout v.
United States, 508 F.2d 951, 953 (6th Cir. 1975)); see also, e.g., United States v. Patterson, 576
F.3d 431, 438 (7th Cir. 2009); United States v. Bond, 135 F.3d 1247, 1248 (8th Cir. 1998) (per
curiam); United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990).
This rule dooms Rupp’s claim. His plea agreement and plea colloquy both show that he
knew that any earlier sentencing estimate would not bind the court and that he could not void his
plea if the estimate turned out to be wrong. First consider his plea agreement. It informed Rupp
that the parties had “no agreement as to the applicable Guidelines factors or the appropriate
Guidelines range.” Plea Agreement, R.6, PageID 19. It added that the government could “seek
any sentence within the statutory maximum” and “argue for any criminal history category and
score, offense level, specific offense characteristics, adjustments, and departures.” Id. The
agreement also informed Rupp that the district court had the final say over the guidelines range.
Id. And it told him that his “disagreement” with the court’s chosen “range or sentence shall not
constitute a basis for withdrawal of the plea.” Id. Lastly, a “merger” clause explained that he
could not rely on outside-the-text “promises.” Id. PageID 23. When signing his name, Rupp
declared that he had read the agreement, that he understood its “terms,” that he “voluntarily”
agreed to them, and that the government had made no other “promises or inducements” to get him
to plead guilty. Id., PageID 24. As we recognized in another case that included a similar signed
declaration in a plea agreement, Rupp’s signature “acknowledg[ing]” that he had read the
agreement and that he was “voluntarily” agreeing to its terms supports the finding that he entered
a knowing and voluntary plea. United States v. Taylor, 281 F. App’x 467, 469 (6th Cir. 2008).
8 No. 22-1240, United States v. Rupp
Next consider the colloquy with the magistrate judge at the plea hearing. Rupp understood
that the district court could impose a sentence up to 25 years’ imprisonment for his offense. Tr.,
R.26, PageID 63. He acknowledged that “only” the district court could “determine” his guidelines
range and that the court could vary upward from this range when imposing a sentence. Id., PageID
64, 66. He agreed that the government had not made “any promises” about what sentence the court
would choose, id., PageID 66, an agreement that bars him from now “relying on an alleged oral
promise by the government” about the sentence, Ewing v. United States, 651 F. App’x 405, 409–
10 (6th Cir. 2016). Rupp further answered “[y]es” when asked if he recognized that he would not
“be able to withdraw” his plea simply because his “sentence is more severe than [he thought] it
might be” while at the plea hearing. Tr., R.26, PageID 66. As we have explained in other cases
rejecting claims that a guilty plea was not voluntary because of the defendant’s allegedly mistaken
belief about the likely sentence, Rupp remains bound by his sworn statements that he understood
that the district court would determine his guidelines range and that he could not void his plea if it
chose a higher-than-anticipated sentence. See United States v. Presley, 18 F.4th 899, 905 (6th Cir.
2021); see also Lewis, 800 F. App’x at 359; Contreras-Armendariz, 207 F. App’x at 596–97.
In response, Rupp does not cite a single Sixth Circuit decision to support his argument that
the government’s estimate rendered his guilty plea unknowing. He instead turns to the Second
Circuit. But the cases on which he relies concerned a different issue—whether the government
had breached a plea agreement when it advocated for a higher guidelines range than the one
referred to in the agreement. See United States v. Wilson, 920 F.3d 155, 163–65 (2d Cir. 2019);
United States v. Palladino, 347 F.3d 29, 34 (2d Cir. 2003). Because the agreements in these cases
noted that their estimates incorporated the information that the government knew at that time, the
court read them to allow the government to seek other enhancements based only on new
9 No. 22-1240, United States v. Rupp
information. See Palladino, 347 F.3d at 33–34. No similar breach occurred here. Rupp’s plea
agreement indicated that the government could argue for any sort of enhancement without limit.
Plea Agreement, R.6, PageID 19; cf. United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) (per
curiam). Because Rupp has shown only a mistaken estimate and because his plea agreement and
plea colloquy made clear that the estimate would not bind the district court, he knowingly and
voluntarily pleaded guilty.
2. Sophisticated-Means Enhancement. Rupp next challenges the district court’s decision
to apply the sophisticated-means enhancement in U.S.S.G. § 2B1.1(b)(10)(C). This two-level
enhancement applies to a fraud offense that “involved sophisticated means” if “the defendant
intentionally engaged in or caused the conduct constituting sophisticated means[.]” Id. In other
words, the defendant must have undertaken a “highly complex, refined, or developed” fraud.
Webster’s New World College Dictionary 1386 (5th ed. 2020); see also 16 Oxford English
Dictionary 10 (2d ed. 1989). This “especially complex” fraud includes tactics like using “fictitious
entities” or “corporate shells” to hide “assets or transactions[.]” U.S.S.G. § 2B1.1 cmt. 9(B).
Before turning to Rupp’s arguments, we flag a conflict in our caselaw over the standard of
review. There is no dispute that we review a district court’s findings about the historical facts
(such as a finding about what a defendant did to conceal the fraud) for clear error, and we review
the court’s conclusions about abstract legal questions (such as a conclusion about the meaning of
the word “sophisticated”) de novo. See United States v. Bertam, 900 F.3d 743, 752–53 (6th Cir.
2018); see also United States v. Thomas, 933 F.3d 605, 608 (6th Cir. 2019). But what standard
applies to the mixed question of whether the historical facts satisfy the legal definition of
“sophisticated means”? Sometimes, we have reviewed this question de novo. See, e.g., United
States v. Daulton, 266 F. App’x 381, 388 (6th Cir. 2008). Other times, we have reviewed it for
10 No. 22-1240, United States v. Rupp
clear error. See, e.g., United States v. Thomas, 841 F. App’x 934, 938 (6th Cir. 2021). Because
Rupp’s challenge fails even under de novo review, we need not resolve this issue today. See
Thomas, 933 F.3d at 610.
In fact, Rupp does not dispute that this enhancement presumptively would apply to his
misconduct. Our cases have upheld its use for a defendant who created “false insurance
certificates” in an insurance-fraud scheme. United States v. Crosgrove, 637 F.3d 646, 667 (6th
Cir. 2011). They have upheld its use for a defendant who used “fictitious identification numbers”
and a “dormant account” to conceal theft from a credit union. United States v. Simmerman, 850
F.3d 829, 833 (6th Cir. 2017). And they have upheld its use for defendants who ran a Ponzi scheme
by using “fraudulent bank documents” and “fictitious website information[.]” United States v.
Phelps, 2021 WL 4315947, at *6 (6th Cir. Sept. 23, 2021). Rupp’s actions fit this mold. He
executed and concealed his fraud using a false broker’s license, fictitious account documents, and
fake online accounts.
Even so, Rupp responds that the enhancement cannot apply because it impermissibly
duplicated his three other offense-level enhancements. Our caselaw has interpreted the Sentencing
Guidelines to bar district courts from engaging in “double counting” by relying on identical
conduct to impose two separate enhancements. See United States v. Duke, 870 F.3d 397, 404 (6th
Cir. 2017); United States v. Farrow, 198 F.3d 179, 188–95 (6th Cir. 1999). This caselaw requires
us to ask two questions: Did “double counting” occur? If so, does the relevant guideline otherwise
authorize the double counting? See Duke, 870 F.3d at 404.
In Rupp’s case, we need not proceed past the first question. No problematic double
counting arises when “distinct aspects” of a defendant’s conduct trigger distinct enhancements.
See United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010). And courts have held that the
11 No. 22-1240, United States v. Rupp
sophisticated-means enhancement targets a distinct aspect of a fraud scheme that typically does
not overlap with other enhancements. For example, we and other courts have held that a
sophisticated-means enhancement in the tax context does not impermissibly overlap with another
enhancement for those who run tax-preparation businesses. See Daulton, 266 F. App’x at 389
(collecting cases). Courts have also held that the sophisticated-means enhancement does not
overlap with an enhancement for those who lead extensive criminal activity. See United States v.
Sethi, 702 F.3d 1076, 1080 (8th Cir. 2013); United States v. Jackson, 346 F.3d 22, 25–26 (2d Cir.
2003). They have held that it does not overlap with an enhancement for those who use a “special
skill” that members of the general public lack. See United States v. Minneman, 143 F.3d 274, 283
(7th Cir. 1998); United States v. Rice, 52 F.3d 843, 850–51 (10th Cir. 1995). And they have held
that it does not overlap with enhancements tied to the number of victims or the amount of the loss.
See United States v. Hatala, 552 F. App’x 28, 30–31 (2d Cir. 2014) (order); United States v.
Dancer, 509 F. App’x 915, 918 (11th Cir. 2013) (per curiam); United States v. Small, 210 F. App’x
776, 783 (10th Cir. 2006) (order).
The same logic applies here. Rupp’s sophisticated-means enhancement did not duplicate
the three others that the district court applied. Rupp primarily complains about this enhancement’s
use in combination with the enhancement for an investment adviser’s violation of the securities
laws. Yet that separate provision applies only to those who meet the definition of “investment
adviser.” U.S.S.G. § 2B1.1(b)(20)(A)(iii), cmt. 16(A). And an investment adviser can commit
securities fraud merely by lying (triggering only the investment-adviser provision), whereas a
noninvestment adviser can use complex means to execute a fraud (triggering only the
sophisticated-means provision). Cf. Daulton, 266 F. App’x at 389. The two provisions thus apply
to distinct aspects of Rupp’s fraud. See Battaglia, 624 F.3d at 351. Likewise, Rupp’s other two
12 No. 22-1240, United States v. Rupp
enhancements arose because of the magnitude of the loss and the hardship that he caused at least
five of his victims. See U.S.S.G. § 2B1.1(b)(1)(J), (2)(B). These provisions also target different
aspects of Rupp’s fraud. After all, a complex fraud can target a single victim, and a simple fraud
can cause a large loss. Since these provisions account for “harms” “different” from the
sophisticated-means enhancement, the district court did not engage in double counting by applying
all of them. Hatala, 552 F. App’x at 30 (citation omitted); see Dancer, 509 F. App’x at 918.
Analogizing to the child-pornography context, Rupp counters that the sophisticated-means
enhancement applies in nearly every fraud case and so fails to treat more culpable defendants more
severely. Appellant’s Br. 17. But Rupp’s own data shows that the enhancement applies in only
about 35% of securities-fraud cases. See U.S. Sentencing Commission, What Does Federal
Economic Crime Really Look Like?, at 19 (Jan. 30, 2019). Besides, the reality that an enhancement
applies frequently says nothing about whether its use in combination with other enhancements
amounts to impermissible “double counting.” As we have said in the child-pornography context
on which Rupp relies, an enhancement that targets a distinct harm is perfectly legitimate no matter
how often it arises. See United States v. Lynde, 926 F.3d 275, 280 (6th Cir. 2019). And one could
reasonably conclude that the use of sophisticated means to engage in fraud causes greater harm
by, for example, making it more difficult to detect. Cf. Daulton, 266 F. App’x at 389.
3. Substantive Reasonableness. Rupp lastly challenges his sentence as substantively
unreasonable. But the appeal waiver in his plea agreement bars this argument. Defendants may
waive the constitutional right to appeal a sentence as long as they waive that right knowingly and
voluntarily. See United States v. Riccardi, 989 F.3d 476, 489 (6th Cir. 2021); United States v.
Moon, 808 F.3d 1085, 1088–90 (6th Cir. 2015); cf. United States v. Mosley, 53 F.4th 947, 967 (6th
Cir. 2022). Here, Rupp signed a plea agreement that unambiguously “waive[d] all rights to appeal”
13 No. 22-1240, United States v. Rupp
his “sentence” except on a few specified grounds. Plea Agreement, R.6, PageID 20–21. As one
of the few exceptions, the agreement allows him to assert a substantive-reasonableness challenge
only if the district court chose a sentence that was “above the Guidelines range as determined by
the court at sentencing[.]” Id., PageID 21. Because Rupp’s 192-month sentence falls comfortably
within his range, this narrow exception does not apply. Rupp thus may not challenge his sentence
as substantively unreasonable under the appeal waiver that he agreed to.
Rupp attempts to avoid this unambiguous waiver by alleging that he did not knowingly and
voluntarily enter the plea agreement. But he makes no arguments unique to the appeal waiver.
The record leaves no doubt that he knowingly agreed to that specific provision. During his plea
hearing, the magistrate judge explained to Rupp that he was agreeing to “give up” his right to
appeal his sentence unless the district court chose an above-guidelines prison term. Tr., R.26,
PageID 76–77; see Fed R. Crim. P. 11(b)(1)(N); United States v. Johnson, 530 F. App’x 406, 409–
10 (6th Cir. 2013). Rupp instead merely reincorporates the general argument that his entire plea
was unknowing and involuntary because of the government’s mistaken sentencing estimate. That
argument fails for the reasons that we have already explained.
We affirm.