                       NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 14a0348n.06
                                          No. 12-3976
                                                                                   FILED
                         UNITED STATES COURT OF APPEALS                         May 01, 2014
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                            )
                                                     )
              Plaintiff-Appellee,                    )
                                                     )     ON APPEAL FROM THE
v.                                                   )     UNITED STATES DISTRICT
                                                     )     COURT FOR THE NORTHERN
DOMINIQUE CALLIER, aka Corleone,                     )     DISTRICT OF OHIO
aka Colie, aka Coleone,                              )
                                                     )
              Defendant-Appellant.                   )
                                                     )

BEFORE: SUHRHEINRICH, KETHLEDGE, and WHITE, Circuit Judges.

       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 sentence 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


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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. § 5G.1.3 and 18 U.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




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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,

No. 12-5265, 2014 WL 783012, at * 1 (6th Cir. Feb. 28, 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


        1
           The relevant portion of 18 U.S.C. § 3742 provides that “[a] defendant may file a notice of appeal in the
district court for review of an otherwise final sentence if the sentence”:

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“expressly and voluntarily waives those rights,” with two enumerated exceptions (as well as

preserving the right to pursue ineffective assistance of counsel or prosecutorial misconduct). The

two sentencing decisions reserved were a sentence in excess of the statutory maximum and a

sentence higher than the applicable Guidelines range. Thus, Defendant waived all of his rights to

appeal his sentence, with two exceptions, and neither of those exceptions covers his argument

that the district court failed to consider the relevant factors under 18 U.S.C. § 3553(a) and

U.S.S.G. § 5G1.3 when it imposed his federal sentence consecutive to his state sentence. See

United States v. Darby, No. 12-4467, 2014 WL 66874, at *2 (6th Cir. Jan. 9, 2014) (holding that

the defendant waived his right to appeal his consecutive sentence where he waived all of his

appellate rights except as to any sentence in excess of the statutory maximum or maximum

advisory sentencing guidelines range; distinguishing Bowman where “the defendant waived only

his right to appeal a within or below-Guidelines sentence, and nothing else”), petition for cert.

filed, Mar. 3. 2014 (No. 13-9137).

         United States v. Reese, 509 F. App’x 494 (6th Cir. 2012), cert. denied, 133 S. Ct. 2780

(2013), involved an identical waiver of appellate rights provision. There we rejected the

defendant’s attempt to challenge the amount-of-loss calculation and restitution order, even

though he had not specifically agreed to forego a challenge to the loss amount or restitution order

because “he expressly waived any right to appeal the ‘conviction or sentence in this case’ unless

the sentence either exceeded the statutory maximum or the top of the Sentencing Guidelines

range.” Id. at 499 (and noting that the defendant’s appeal waiver “uses standard language that

         (1) was imposed in violation of law;
         (2) was imposed as a result of an incorrect application of the sentencing guidelines; or
         (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence
includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in
the guideline range, or includes a more limiting condition of probation or supervised release under section
3563(b)(6) or (b)(11) than the maximum established in the guideline range; or
         (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
Id. § 3472(a).

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has been approved by this Court in the past” (citing United States v. Ferguson, 669 F.3d 756,

765 (6th Cir. 2012)). That is precisely the scenario here—although Defendant did not expressly

waive his right to challenge a consecutive sentence, he expressly waived any right to appeal his

sentence; with only two exceptions.

                                               IV.

          We further note that Defendant’s appeal lacks merit in any event. Section 5G1.3(b) is

inapplicable here because the conduct giving rise to Defendant’s state term of imprisonment––

participation in a March 14, 2009 shooting––was not “the basis for an increase in [Defendant’s]

offense level for the instant offense.” U.S.S.G. § 5G.3(b). And § 5G1.3(d) does not support

resentencing because the district court adequately explained its reasons for imposing Defendant’s

federal sentence consecutively to his state sentence. The district court heard argument about

whether to impose the sentences concurrently or consecutively, questioned Defendant about the

length of, and time remaining on, his state sentence, and discussed Defendant’s criminal history,

background, and participation in the conspiracy.

                                               V.

          For the reasons discussed, we DISMISS Defendant’s appeal as barred by the appeal

waiver.




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