433 F. App'x 388
6th Cir.2011Background
- Vandewege pleaded guilty to distribution of cocaine under a plea agreement that included an appellate waiver.
- The district court calculated a Guidelines range of 130–162 months and sentenced Vandewege to 162 months.
- On appeal, Vandewege challenged (i) drug-quantity calculation and (ii) remand for a crack/powder guideline amendment; we affirmed the quantity issue but remanded for resentencing under 18 U.S.C. § 3582(c).
- At resentencing, the court applied the revised crack-cocaine guidelines, calculating a new range of 110–137 months and heard a request for a variance.
- The district court denied a variance and imposed a within-range sentence of 130 months.
- Vandewege appeals the denial of the variance, arguing the sentence is unreasonable and the court should have variated; the government did not move to dismiss the appeal, but the waiver provision governs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is waived by the valid plea agreement | Vandewege challenges the variance denial, not the range itself. | The waiver covers within-range sentences and the variance denial is outside the preserved grounds. | Appeal dismissed due to valid appellate waiver. |
| Whether the government’s failure to move to dismiss forfeits the waiver argument | Government did not timely raise waiver; cannot rely on waiver now. | We may rely on waiver independently of government motion to dismiss. | Waiver argument properly preserved; failure to move to dismiss does not forfeit it. |
Key Cases Cited
- United States v. Coker, 514 F.3d 562 (6th Cir. 2008) (waiver of appellate rights must be knowing and voluntary)
- United States v. Calderon, 388 F.3d 199 (6th Cir. 2004) (ambiguities in plea agreements construed against government)
- United States v. Smith, 344 F.3d 479 (6th Cir. 2003) (valid waiver precludes review of non-excluded issues)
- United States v. McGilvery, 403 F.3d 361 (6th Cir. 2005) (motion to dismiss urged for waivers; not required to prevent waiver reliance)
- United States v. Thomas, 605 F.3d 300 (6th Cir. 2010) (waiver of appellate rights reviewed de novo; strict construction favoring the government)
- United States v. Jones, 569 F.3d 569 (6th Cir. 2009) (de novo review of waiver question; plea guidelines and waivers)