565 F. App'x 423
6th Cir.2014Background
- Callier pled guilty to conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity (RICO) in the Northern District of Ohio.
- Defendant was sentenced to 37 months’ imprisonment to run consecutively to a state-court sentence, and the government moved to dismiss the appeal as waivable.
- Plea agreement (Rule 11(c)(1)(B)) set base offense level at 19 with future CHC to be determined and reserved the right to seek concurrent sentencing under §5G1.3 and 18 U.S.C. § 3584.
- Plea agreement contained a broad waiver of appellate rights to appeal conviction or sentence, with two enumerated exceptions (punishment above statutory maximum; sentence exceeding the applicable Guideline range), plus preservation of ineffective assistance/prosecutorial misconduct claims.
- At sentencing, the court set an adjusted range of 37–46 months after downward variance, and ordered the federal sentence to run consecutively to the state sentence; Callier appealed, challenging the consecutive sentence under §5G1.3 and alleging incomplete consideration of §3553(a) factors.
- The district court and Seventh Circuit upheld the state-consecutive sentence as barred by the appeal waiver, and the government’s motion to dismiss was granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the plea waiver bars Callier’s direct appeal of the consecutive sentence | Callier argues Bowman carve-out applies (waiver lacks explicit reference to §5G1.3/consecutive sentence) | Callier contends the waiver does not cover the district court’s imposition of a consecutive sentence | Yes, barred by waiver under the agreement |
| Whether the two exceptions to the waiver preserve review of the consecutive sentence | Waiver should allow review of the consecutive sentence under the exceptions | Waiver exclusions do not cover the §3553(a)/§5G1.3 challenge | No; exceptions do not preserve review of the consecutive sentence |
| Whether §5G1.3 arguments have merit and warrant resentencing or adjustment | §5G1.3(b) and (d) could apply to offset the state sentence | The district court adequately explained the consecutive sentence and §5G1.3 is inapplicable here | Merit lacking; §5G1.3(b)/(d) inapplicable; no resentencing warranted |
Key Cases Cited
- United States v. Smith, 344 F.3d 479 (6th Cir. 2003) (waiver of appellate rights reviewed de novo; enforce clear waivers)
- United States v. Fitch, 282 F.3d 364 (6th Cir. 2002) (ambiguous waivers construed against government)
- United States v. Bowman, 634 F.3d 357 (6th Cir. 2011) (within-guidelines limitation; no explicit reference to consecutive sentence→ possible appeal)
- United States v. Darby, 549 Fed.Appx. 499 (6th Cir. 2014) (waiver broader than Bowman; review limited to exceptions stated)
- United States v. Reese, 509 Fed.Appx. 494 (6th Cir. 2012) (upheld waiver of appeal where sentence within guideline range; cited standard language)
- United States v. Denton, 557 Fed.Appx. 506 (6th Cir. 2014) (per curiam; merits of consecutive-sentence challenge noted but not availed)