USA v. Quenton Whitsell, Sr.

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Jeffrey S. Sutton, David W. McKeague, Circuit Judges and Kenneth F. Ripple (Authoring), Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation.

Case: 11-1135

Document: 006111314153

Filed: 05/22/2012

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0532n.06
No. 11-1135
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
QUENTON THOMAS WHITSELL, SR.,
Defendant-Appellant.

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FILED

May 22, 2012
LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

BEFORE: SUTTON, McKEAGUE, and RIPPLE, Circuit Judges.*

RIPPLE, Circuit Judge. Quenton Thomas Whitsell, Sr., pleaded guilty to drug and firearm
offenses. He now seeks to invalidate his guilty pleas and challenge his sentence. For the reasons
set forth below, we affirm the district court’s judgment as to Mr. Whitsell’s guilty pleas and dismiss
the appeal as to his sentence.
Pursuant to a Rule 11 plea agreement, Mr. Whitsell pleaded guilty to two counts of the first
superseding indictment charging him with possession with intent to distribute fifty grams or more
of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count 3) and possession of a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 4). With respect
to Mr. Whitsell’s sentencing, the parties agreed upon a guidelines range of 262 to 327 months, and
the government agreed to recommend a sentence not exceeding the top of that range. Mr. Whitsell

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The Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.

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reserved the right to withdraw his guilty pleas if the district court imposed a higher sentence. Also
as part of the plea agreement, Mr. Whitsell waived all rights to appeal his convictions and sentence.
The probation office prepared a presentence report calculating a guidelines range higher than
the agreed-upon range. Mr. Whitsell moved to withdraw his guilty pleas based on the presentence
report’s higher guidelines range and on the Supreme Court’s recent decision in Abbott v. United
States, 131 S. Ct. 18, 23 (2010), requiring a mandatory, consecutive five-year sentence for his
§ 924(c) conviction. The district court denied Mr. Whitsell’s motion to withdraw his guilty pleas
with leave to renew the motion post-sentencing. Mr. Whitsell moved for reconsideration, again
asserting that the change in law with respect to the mandatory minimum for the firearm count
entitled him to withdraw his guilty pleas.
At sentencing, the district court rejected the presentence report’s higher guidelines range and
adopted the agreed-upon range of 262 to 327 months. The district court denied Mr. Whitsell’s
motion for reconsideration, noting its intent to impose a sentence within the agreed-upon range.
After considering Mr. Whitsell’s arguments for a sentence below the agreed-upon range and the
sentencing factors under 18 U.S.C. § 3553(a), the district court sentenced Mr. Whitsell to 262
months of imprisonment on the drug count and imposed the mandatory, consecutive 60-month
sentence on the firearm count.
This timely appeal followed. The government moved to dismiss Mr. Whitsell’s appeal based
on the appellate waiver in the plea agreement. The motion to dismiss was referred to this panel.
Mr. Whitsell filed a motion to file his own brief supplementing the brief filed by counsel, which this
court denied. Mr. Whitsell filed a motion for reconsideration and tendered a supplemental brief.
The brief filed by counsel raises the following issues: (1) Mr. Whitsell’s plea was not knowing and
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voluntary because the district court failed to advise him properly regarding the mandatory minimum
on the firearm count; (2) the district court violated the plea agreement by sentencing him in excess
of the agreed-upon mandatory minimum; and (3) the district court should have sentenced him under
the Fair Sentencing Act of 2010 because his sentencing occurred after the Act’s effective date.
Mr. Whitsell first contends that his plea was not knowing and voluntary. “The issue of
whether a plea was knowing, voluntary, and intelligent is a legal question that this Court reviews de
novo.” United States v. Dixon, 479 F.3d 431, 434 (6th Cir. 2007). The validity of a plea is
determined by referring to the totality of the circumstances. United States v. Usher, 703 F.2d 956,
958 (6th Cir. 1983).
First, Mr. Whitsell contends that his plea was not knowing and voluntary because the district
court failed to advise him properly regarding the mandatory minimum for the firearm count as
required by Rule 11(b)(1)(I). We review a violation of Rule 11’s requirements for harmless error.
Fed. R. Crim. P. 11(h). A violation “is harmless error if it does not affect substantial rights.” Id.
“If a defendant fails timely to object to a Rule 11 violation, the standard shifts to plain error and the
burden is on the defendant to show that but for the error, he would not have pleaded guilty.” United
States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012). While Mr. Whitsell moved to withdraw his
guilty pleas based on Abbott, he never made a specific objection to a Rule 11 violation. Regardless,
the district court did not err in advising Mr. Whitsell of the mandatory minimum for the firearm
count.
At the time of Mr. Whitsell’s plea colloquy, Sixth Circuit precedent held that a
firearm-related mandatory minimum sentence could be served concurrently with a mandatory
minimum for another crime. See United States v. Almany, 598 F.3d 238 (6th Cir. 2010).
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Consequentially, the district court informed Mr. Whitsell that his sentences for a drug offense and
a firearm offense “could be served consecutively but more likely, under federal law, sentencing will
be made concurrently.” R.69 at 15. After Mr. Whitsell’s plea colloquy, but before he was sentenced,
the Supreme Court abrogated Almany by holding that the firearm-related mandatory minimum must
be applied consecutively, rather than concurrently, with other mandatory minima. Abbott v. United
States, 131 S. Ct. 18 (2010). Mr. Whitsell now contends that this post-plea change in the law
rendered his plea unknowing and involuntary. His argument is foreclosed by both Supreme Court
precedent and the precedent of this court, which state clearly that post-plea changes cannot render
an otherwise valid plea involuntary or unknowing. See Brady v. United States, 397 U.S. 742 (1970);
United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005). As the Second Circuit has stated,
“[T]he possibility of changes in the law is simply one of the risks allocated by the parties’ [plea]
agreement.” United States v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005). Mr. Whitsell presents no
other reason to doubt the validity of his plea, and we find none in the record.
Mr. Whitsell next argues that the district court violated the plea agreement by sentencing him
in excess of the agreed-upon mandatory minimum. Because Mr. Whitsell failed to make this specific
objection before the district court, we review for plain error. See United States v. Barnes, 278 F.3d
644, 646 (6th Cir. 2002).
Paragraph 2B of Mr. Whitsell’s plea agreement stated: “Defendant’s guideline range is
262-327 months, as set forth on the attached worksheets.” Worksheet D set forth the guidelines
range calculation and further provided: “Pursuant to 21 U.S.C. § 841(b), a ten-year mandatory
minimum applies to Count Three, and pursuant to recent Sixth Circuit case law, the five-year term
mandated by 18 U.S.C. § 924(c) is not mandatorily imposed to run consecutively to the ten-year
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term. Thus, the mandatory minimum is ten years.” Again, at the time that Mr. Whitsell entered into
the plea agreement, this was a correct statement of the law regarding the mandatory minimum
sentence for a § 924(c) conviction. Even if the district court violated the plea agreement by imposing
the five-year mandatory minimum for the firearm count in addition to the ten-year mandatory
minimum for the drug count, that purported violation did not affect Mr. Whitsell’s substantial rights.
The district court ultimately sentenced Mr. Whitsell within the agreed-upon guidelines range.
Considering that the agreed-upon guidelines range was lower than the range calculated by the
probation office and that Mr. Whitsell potentially faced a life sentence, he received the benefit of his
bargain.
We have held that a judge’s failure to communicate the mandatory minimum sentence does
not affect the substantial rights of the defendant when the guideline sentencing range exceeds the
mandatory minimum. See United States v. Bashara, 27 F.3d 1174, 1179-80 (6th Cir. 1994),
superseded on other grounds by statute. In this case, Mr. Whitsell was subject to a guidelines
sentence of 262-327 months. As with the defendant in Bashara, Mr. Whitsell was on notice that he
would receive a sentence longer than the total fifteen years imposed by consecutive mandatory
minimums. Even if he was misinformed that he would be subject to a ten-year (120 month)
mandatory minimum, rather than a fifteen year (180 month) mandatory minimum, that misstatement
simply does not infringe on a substantial right.
Finally, Mr. Whitsell’s argument that the district court should have sentenced him under the
Fair Sentencing Act and his arguments raised in the tendered supplemental brief are barred by the
plea agreement’s appeal waiver. We review de novo “the question of whether a defendant waived
his right to appeal his sentence in a valid plea agreement.” United States v. McGilvery, 403 F.3d
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361, 362 (6th Cir. 2005). In the plea agreement, Mr. Whitsell agreed “to give up all appeal rights
he may have regarding both his conviction and sentence in exchange for the other terms of this
Agreement.” In accordance with Rule 11(b)(1)(N), the district court reviewed the appeal waiver
during the plea hearing and ascertained that Mr. Whitsell understood the rights that he was waiving.
The appeal waiver is thus valid and enforceable. See McGilvery, 403 F.3d at 363; see also Bradley,
400 F.3d at 465-66 (enforcing appeal waiver after rejecting the defendant’s argument that a
subsequent change in the law invalidated his plea).
For the foregoing reasons, we AFFIRM the district court’s judgment as to Mr. Whitsell’s
guilty pleas and otherwise DISMISS this appeal.

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