U.S. v. Calderon
| Decision Date | 10 September 2004 |
| Docket Number | No. 03-1453.,No. 03-1583.,03-1453.,03-1583. |
| Citation | 388 F.3d 197 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luis Perez CALDERON (03-1453) and Jose Ambrez Estrada (03-1583), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Michigan, Marianne O. Battani, J ARGUED: Suzanna Kostovski, James L. Feinberg, Detroit, MI, for Appellants. Carl D. Gilmer-Hill, United States Attorney, Detroit, MI, for Appellee.
ON BRIEF: Suzanna Kostovski, James L. Feinberg, Detroit, MI, for Appellants. Carl D. Gilmer-Hill, Kathryn A. McCarthy, United States Attorneys, Detroit, MI, for Appellee.
Before: DAVID A. NELSON, SILER, and BATCHELDER, Circuit Judges.
The defendants in these consolidated criminal appeals seek to challenge the sentences imposed upon them by the district court. Each defendant, however, entered a plea agreement in which he waived his right to appellate review. We are not persuaded that the issues raised by the defendants fall outside the scope of those waivers, and the appeals will therefore be dismissed.
Luis Calderon, Jose Estrada, and three other men were indicted on charges of conspiring to possess or distribute and actually possessing or distributing, a listed chemical (pseudoephedrine) with the knowledge that it would be used to manufacture a controlled substance (methamphetamine). Calderon and Estrada separately agreed to plead guilty to the conspiracy charge in exchange for dismissal of the substantive charge.
Mr. Calderon's plea agreement stated that he and the government had agreed on the appropriate sentence range under the United States Sentencing Guidelines and that, "in the absence of a later stipulation otherwise," neither party would seek a departure from the guidelines range (except that the government could request a downward departure for substantial assistance under U.S.S.G. § 5K1.1). The agreed-upon range was 240 months.
The agreement also contained a waiver of Mr. Calderon's appellate rights: "If the court imposes a sentence equal to or less than the [agreed-upon] maximum sentence..., defendant waives any right he may have to appeal his conviction or sentence, including any right under 18 U.S.C. § 3742 to appeal on the grounds that the sentence was imposed as a result of an incorrect application of the sentencing guidelines."
At the plea hearing, Mr. Calderon and the government stipulated that Calderon would be permitted to request a downward departure from the guidelines sentence range on the basis of "medical and/or psychological factors." Mr. Calderon subsequently moved for a downward departure, and the district court denied the motion. The court granted the government's § 5K1.1 motion, however, and sentenced Calderon to 120 months of imprisonment.
Mr. Estrada's plea agreement likewise stated that he and the government had agreed on the appropriate sentence range. A hand-written modification, however, provided that Estrada reserved the right to seek a downward adjustment of his offense level on the ground that he was a minor participant in the conspiracy. The sentence range that was agreed upon (subject to Mr. Estrada's reservation of rights) was 168 to 210 months; the parties further agreed that Estrada's sentence should not exceed the midpoint of that range, 189 months. Mr. Estrada's agreement contained the same waiver of appellate rights that appeared in Mr. Calderon's agreement.
At sentencing, the district court determined that Mr. Estrada was not a minor participant in the conspiracy. The court then sentenced Estrada to 168 months of imprisonment, the low end of the guidelines range. Each defendant filed a timely appeal of his sentence.
"It is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement." United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001) (internal quotation marks omitted). In the case at bar, we believe, each defendant waived the appeal rights sought to be asserted here. The appeals must therefore be dismissed.
The language of the defendants' waivers is clear and unlimited in scope: "defendant waives any right he may have to appeal his conviction or sentence" (emphasis added). The only condition placed upon the waivers—that the defendant not receive a sentence greater than the agreed-upon maximum—was satisfied. Indeed, each defendant was sentenced to a term of imprisonment substantially less than the maximum term to which he agreed.
Mr. Calderon contends that his waiver covers only those matters specifically addressed...
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...is well settled that a defendant in a criminal case may waive any right ... by means of a plea agreement." United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (quoting United States v. Fleming, 239 F.3d 761, 763–64 (6th Cir. 2001) ). This, of course, "includes the right to appeal,’......
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