698 F.3d 248 (6th Cir. 2012), 10-5264, United States v. Beals

Docket Nº:10-5264, 10-5432, 10-5877, 10-6084.
Citation:698 F.3d 248
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee (10-5264 & 10-5432), Plaintiff-Appellee/Cross-Appellant (10-5877 & 10-6084), v. Leslie R. BEALS (10-5264) and Pamela R. Miller (10-5432), Defendants-Appellants, Bobby Ambrose, Defendant-Appellant/Cross-Appellee (10-5877 & 10-6084).
Attorney:D.R. Smith, Law Office of D.R. Smith, Johnson City, Tennessee, for Appellant/Cross-Appellee in 10-5877 and 10-6084. Caryn L. Hebets, United States Attorney's Office, Johnson City, Tennessee, for Appellee/Cross-Appellant in 10-5877 and 10-6084. James T. Bowman, Johnson City, Tennessee, for Appella...
Judge Panel:Before: SILER and GRIFFIN, Circuit Judges; and TARNOW, District Judge.[*] GRIFFIN, J., delivered the opinion of the court, in which SILER, J., joined. TARNOW, D.J., joined the opinion of the court regarding Beals and Ambrose; and concurred in the judgment only regarding Miller. TARNOW, D.J. (pp. ...
Case Date:October 16, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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698 F.3d 248 (6th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee (10-5264 & 10-5432), Plaintiff-Appellee/Cross-Appellant (10-5877 & 10-6084),

v.

Leslie R. BEALS (10-5264) and Pamela R. Miller (10-5432), Defendants-Appellants,

Bobby Ambrose, Defendant-Appellant/Cross-Appellee (10-5877 & 10-6084).

Nos. 10-5264, 10-5432, 10-5877, 10-6084.

United States Court of Appeals, Sixth Circuit.

October 16, 2012

Argued: Jan. 10, 2012.

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ARGUED:

D.R. Smith, Law Office of D.R. Smith, Johnson City, Tennessee, for Appellant/Cross-Appellee in 10-5877 and 10-6084.

Caryn L. Hebets, United States Attorney's Office, Johnson City, Tennessee, for Appellee/Cross-Appellant in 10-5877 and 10-6084.

ON BRIEF:

James T. Bowman, Johnson City, Tennessee, for Appellant in 10-5264.

Tracy Jackson Smith, Law Office of Tracy Jackson Smith, Knoxville, Tennessee, for Appellant in 10-5432.

D.R. Smith, Law Office of D.R. Smith, Johnson City, Tennessee, for Appellant/Cross-Appellee in cases 10-5877 and 10-6084.

Caryn L. Hebets, United States Attorney's Office, Johnson City, Tennessee, for Appellee in 10-5264 and 10-5432 and for Appellee/Cross-Appellant in 10-5877 and 10-6084.

Before: SILER and GRIFFIN, Circuit Judges; and TARNOW, District Judge.[*]

GRIFFIN, J., delivered the opinion of the court, in which SILER, J., joined.

TARNOW, D.J., joined the opinion of the court regarding Beals and Ambrose; and concurred in the judgment only regarding Miller.

TARNOW, D.J. (pp. 273-75), delivered a separate concurring opinion with regard to appeal 10-5432.

OPINION

GRIFFIN, Circuit Judge.

These four consolidated appeals involve an alleged methamphetamine manufacturing and distribution conspiracy in eastern Tennessee that involved forty-nine indicted defendants. See 21 U.S.C. §§ 841(a), 846. Defendant Pamela Miller pleaded guilty and now challenges her sentence. (Appeal No. 10-5432) The government contends that Miller promised not to appeal her sentence as part of her agreement to plead guilty. It moves to dismiss her appeal. Defendants Leslie Beals and Bobby Ambrose chose to go to trial, and a jury convicted them as charged. Beals appeals his convictions on the ground that the evidence was insufficient. (Appeal No. 10-5264) Ambrose challenges some of his convictions on the same ground and also claims error in the district court's denials of his pretrial suppression motion and mid-trial request for the government to disclose the identity of a confidential informant. (Appeal No. 10-5877) Finally, the government cross-appeals Ambrose's sentence, claiming the Supreme Court's intervening decision in Abbott v. United States, __ U.S. __, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), renders it unlawful. (Appeal No. 10-6084)

For the following reasons, we dismiss Miller's appeal as waived, affirm Beals's convictions, vacate Ambrose's sentence, and remand Ambrose's case for further factfinding and resentencing. We address the appeals separately.

I. Miller's Appeal (No. 10-5432)

A.

The government charged Pamela Miller with conspiracy to manufacture 50 or more grams of methamphetamine and 500 or more grams of a mixture or substance containing methamphetamine, as well as possession of equipment used to manufacture methamphetamine. She agreed to plead to the lesser included offense of conspiracy to manufacture 50 or more grams of a mixture or substance containing methamphetamine in exchange for the government's

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promise to dismiss the possession charge.

As part of her plea agreement, Miller stipulated that she conspired to " manufacture approximately 80.43 grams of a mixture and substance containing a detectable amount of methamphetamine, ... and that [she] purchased 146.25 grams of pseudoephedrine which [she] provided to other co-conspirators to manufacture methamphetamine." The plea agreement states that " this quantity of pseudoephedrine converts to 1,462.50 kilograms of marijuana." The district court accepted Miller's guilty plea. It then sentenced her to 120 months' imprisonment, the bottom end of the Guidelines range it calculated.

Miller challenges primarily the district court's decision at sentencing to use the marijuana equivalency of the pseudoephedrine she purchased, instead of the quantity of the mixture and substance containing methamphetamine she conspired to manufacture, to calculate her Guidelines range. The court's election to do so increased Miller's Guidelines range and ultimate sentence.

B.

The government has moved to dismiss Miller's appeal on the ground that she waived the right to appeal her sentence as part of her plea agreement. We agree and therefore grant its motion.

Miller's plea agreement contains the following provision regarding appeals:

[T]he defendant agrees not to file a direct appeal of the defendant's conviction or sentence except the defendant retains the right to appeal a sentence imposed above the sentencing guideline range as determined by the district court.

Miller received a within-Guidelines sentence.

The law in this area is well-settled: " Criminal defendants may waive their right to appeal as part of a plea agreement so long as the waiver is made knowingly and voluntarily." United States v. Swanberg, 370 F.3d 622, 625 (6th Cir.2004). When they do so, " [o]nly challenges to the validity of the waiver itself will be entertained on appeal." United States v. Toth, 668 F.3d 374, 377 (6th Cir.2012). Miller does not contend that her plea was unknowing or involuntary. She instead argues that the waiver provision does not cover challenges to the district court's alleged misapplication of the Sentencing Guidelines and, alternatively, that the waiver is unenforceable on account of the government's breach of the plea agreement. We take the arguments in turn.

1.

The terms of Miller's appeal waiver are broad. She waived the right to appeal any sentence unless it is " above the sentencing guideline range as determined by the district court. " (Emphasis added.) Reasonably read, this language defers to the district court's discretion in calculating Miller's Guidelines range and permits her to challenge the resulting sentence only if it exceeds the top end of the range the court calculates. Miller's sentence does not exceed the top end of the range as calculated by the district court. Therefore, the appeal waiver covers her present sentencing challenge and precludes our review.

Had Miller wished to preserve a challenge to the district court's Guidelines calculation, she certainly could have bargained for it. See, e.g., United States v. Brandon, 445 Fed.Appx. 845, 846 (6th Cir.2012) (plea agreement stating that " Defendant retains his right to directly appeal the Court's adverse determination of any disputed

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guideline issue that was raised at or before the sentencing hearings" ); United States v. Deanda, 450 Fed.Appx. 498, 499 (6th Cir.2011) (agreement stating that defendant " waives the right to appeal a sentence that is within or below the guideline range as determined by the Court at sentencing ... except that the Defendant may appeal on grounds, preserved at sentencing, that the Court incorrectly determined the guideline range" ); United States v. Vandewege, 433 Fed.Appx. 388, 389 (6th Cir.2011) (same); United States v. Flowers, 428 Fed.Appx. 526, 527 (6th Cir.2011) (same). We must give effect to the intent of the parties as expressed by the plain language in the plea agreement. See United States v. Moncivais, 492 F.3d 652, 662 (6th Cir.2007) (" Plea agreements are to be enforced according to their terms." ).

Resisting this conclusion, Miller argues that the waiver provision " clearly presupposes a correct calculation of [her] sentencing guideline range" and thus permits her challenge. She relies primarily upon United States v. McCoy, 508 F.3d 74 (1st Cir.2007), but that case offers her no support. There, as part of his written plea agreement, the defendant waived his right to appeal any sentence that fell " within the guideline range." Id. at 78. The court held that such language " does not waive the right to appeal an alleged misapplication of the guidelines." Id. Miller's waiver provision is unlike the one in McCoy. Indeed, McCoy distinguished the language in the provision before it from language in provisions like Miller's that waives a defendant's right to appeal any sentence imposed within the Guidelines range " as determined by the district court." Id. at 78 n. 4. Such " [b]roader appeal waivers," McCoy suggested, could preclude appellate challenges to the district court's Guidelines calculation. Id.

In United States v. Giganti, 405 Fed.Appx. 31 (6th Cir.2010), we 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 " — which is what Miller's provision says— precluded any challenge to the district court's Guidelines calculation. Id. at 37 (emphasis added). We found that the waiver provision was " very different" from the one in McCoy, and we expressly recognized that the discussion in McCoy regarding alternative waiver language in fact supported a finding of waiver in the case then before us. Id. The Third Circuit reached a similar result in United States v. Corso, 549 F.3d 921 (3d Cir.2008), where it distinguished McCoy and concluded that a provision permitting an appeal only if the sentence "...

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