USA v. Phillip Cole
OPINION: The appellate-waiver provision is valid and applicable to this case. The appeal is DISMISSED, decision not for publication. Eric L. Clay, Circuit Judge (AUTHORING); Raymond M. Kethledge, Circuit Judge and Bernice Bouie Donald, Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0223n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Mar 24, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
CLAY, KETHLEDGE, and DONALD, Circuit Judges.
CLAY, Circuit Judge.
Defendant Phillip Cole appeals the district court order
sentencing him to 15 months of imprisonment for knowingly failing to update his sex offender
registration, in violation of 18 U.S.C. § 2250(a). Defendant has waived his right to appellate
review. We therefore DISMISS the appeal.
Defendant was convicted in 2003 of two counts of transportation of minors for illegal
sexual activity, in violation of 18 U.S.C. § 2423(a).
He was sentenced to 57 months of
imprisonment. As a condition of his sentence, Defendant was required to annually register as a
sex offender in the state of his residence following his release. He was responsible for ensuring
that authorities were apprised of his current address, to be listed on the public registry. If he
moved, he had 10 days to inform law enforcement officials, in person, of his new residence; if he
relocated to another state, he had 14 days to register with the authorities of the new jurisdiction.
Defendant was released in 2007. He initially registered with the Michigan authorities and
updated his information annually. But he failed to timely register in 2012 and was indicted in
September of that year. In July of 2013, Defendant was arrested following a traffic stop in
At that time, he informed the authorities that he was living in Clinton
Township, Michigan. The last time he registered, in April 2011, he had listed as his permanent
address a residence in Detroit.
Defendant pleaded guilty to one count of failure to register, in violation of 18 U.S.C.
§ 2250(a), on April 8, 2014.
The plea agreement acknowledged a disagreement between
Defendant and the government with respect to the applicable guidelines range. The basis of the
dispute was the proper interpretation of § 2A3.5 of the sentencing guidelines. Defendant’s view
suggested that the appropriate guidelines range was 10 to 16 months, whereas the government’s
view suggested 15 to 21 months. The agreement provided that the district court would decide
between the two interpretations, and that the court’s decision could not provide a basis for
Defendant’s withdrawal from the plea.
The agreement also included an appellate-waiver
provision. The court sided with the government and sentenced Defendant to 15 months of
imprisonment, the minimum term under the higher guidelines range. This appeal followed.
The government draws our attention to the appellate waiver in Defendant’s plea
agreement. We consider this at the outset and find that our review of the merits is foreclosed by
the appellate-waiver provision. A plea agreement is merely a contract between a defendant and
the government; we are typically bound by its terms. United States v. Bowman, 634 F.3d 357,
360 (6th Cir. 2011). It is well-established that a defendant is entitled to bargain away his right to
appellate review. United States v. Fleming, 239 F.3d 761, 763–64 (6th Cir. 2001). Thus, a valid
waiver may preclude a challenge to the correct application of the sentencing guidelines. United
States v. Beals, 698 F.3d 248, 256 (6th Cir. 2012) (“[W]e [have] held that an appeal waiver that
extinguished a defendant’s right to appeal any sentence within or below the guideline range as
determined by the Court at sentencing . . . precluded any challenge to the district court’s
Guideline calculation.” (internal quotation marks omitted)).
We will not review a sentence in the face of a valid waiver, save for a few “limited
circumstances.” United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003) (internal quotation
marks omitted). Defendant does not allege ineffective assistance of counsel, In re Acosta,
480 F.3d 421, 422 (6th Cir. 2007), that the government violated the terms of the agreement,
United States v. Swanberg, 370 F.3d 622, 627–28 (6th Cir. 2004), or that the government failed
to timely raise the waiver issue, Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir. 1998),
nor could he. The district court was not, as Defendant suggests, required to specifically ask
whether or not he understood the appellate-waiver provision of the plea agreement. United
States v. Sharp, 442 F.3d 946, 951–52 (6th Cir. 2006). A waiver is valid so long as it is
“voluntarily and knowingly made.” United States v. Murdock, 398 F.3d 491, 496–97 (6th Cir.
2005). Where the “provision was discussed in open court” and Defendant affirmed that he
understood the agreement, entered it voluntarily, acknowledged having “read [and] . . . discussed
it with his attorney, and [he] does not claim that his attorney’s explanation of the appellatewaiver provision was inadequate,” the waiver is valid. Sharp, 442 F.3d at 952.
Defendant agreed to accept without appeal any sentence not exceeding the upper-limit
of his guidelines range.
The agreement did not specify the applicable guidelines range.
Construing any ambiguity in Defendant’s favor, as we must, United States v. Jones, 569 F.3d
569, 572 (6th Cir. 2009), the provision applies to any term fewer than 17 months. His 15-month
sentence falls comfortably within this waiver. Defendant has no right to this appeal or to
challenge the district court’s interpretation of the sentencing guidelines. That is the bargain he
struck as part of his decision to enter a plea agreement. In any event, we also find the merits of
Defendant’s appeal unpersuasive.
The appellate-wavier provision is valid and applicable to this case.
The appeal is
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