United States v. Koljo Nikolovski ( 2014 )

NOT RECOMMENDED FOR PUBLICATION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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