NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0814n.06
Filed: October 5, 2005
No. 04-3737
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
FRANCISCO PATINO, )
) OPINION
Defendant-Appellant. )
_______________________________________)
Before: DAUGHTREY, MOORE, and MCKEAGUE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Francisco Patino
(“Patino”) alleges on appeal that the district court erred by: (1) denying his motion to dismiss the
indictment based on alleged violations of the Speedy Trial Act; (2) sentencing him in violation of
United States v. Booker, 125 S. Ct. 738 (2005); and (3) selecting an improper total offense level in
determining the appropriate sentence under the federal sentencing guidelines. For the reasons set
forth below, we conclude that in light of Booker, the district court plainly erred in sentencing Patino
under the belief that the federal sentencing guidelines were mandatory. Therefore, we VACATE
Patino’s sentence and REMAND for resentencing. As to the other errors raised by the defendant,
we DISMISS the appeal regarding the remaining claims as inconsistent with the appellate-review
waiver in Patino’s plea agreement.
I. BACKGROUND
On February 6, 2002, Francisco Patino and three codefendants were indicted in the Northern
District of Ohio on a fifteen-count indictment stemming from the illegal distribution of
pseudoephedrine. On July 2, 2002, Patino was arrested in the Northern District of California based
on the charges in the indictment. Patino was then transported to the Northern District of Ohio and
arraigned there. On February 18, 2003, Patino filed a motion to dismiss the indictment based on
alleged violations of the Speedy Trial Act. The district court denied this motion.
On April 14, 2003, Patino entered into a plea agreement with the government. Under the
terms of the agreement, Patino agreed to plead guilty to Count One, conspiracy to manufacture and
possess with intent to manufacture 500 grams of a mixture or substance containing a detectable
amount of methamphetamine in violation of 21 U.S.C. § 846. In exchange the government agreed
to dismiss the remaining charges against Patino. In the agreement both parties stipulated that the
amount of methamphetamine attributable to the defendant “was fifteen kilograms or more of a
mixture and substance containing a detectable amount of methamphetamine.” Joint Appendix
(“J.A.”) at 180 (Plea Agreement at 4). The agreement also noted that both parties admitted that
under the 2001 Guidelines Manual the appropriate base offense level was thirty-eight. Nonetheless,
the agreement reserved the defendant’s right to argue that the 2000 Guidelines Manual applied to
the case and thus the appropriate base offense level would be thirty. The agreement also reserved
the defendant’s right to argue before the district court that the defendant should receive a two-level
reduction pursuant to the safety-valve provision U.S.S.G. § 5C1.2 and a two-to-four level reduction
for Patino’s mitigating role in the criminal offense under U.S.S.G. § 3B1.2. Finally, the agreement
contained a waiver provision which stated that:
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Defendant acknowledges having been advised by counsel of his 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. The defendant expressly waives those rights except as reserved
below. The defendant reserves the right to appeal the imposition of any sentence
inconsistent with the provisions of this plea agreement. Nothing in this paragraph
shall act as a bar to the defendant perfecting any legal remedies he may otherwise
have on appeal or collateral attack respecting claims of ineffective assistance of
counsel or prosecutorial misconduct.
J.A. at 184 (Plea Agreement at 8).
At the sentencing hearing, the defense counsel objected to the determination in the
presentence report that the 2001 Guidelines Manual applied. Moreover, the defense counsel also
argued that: (1) the defendant should receive a downward departure; (2) the defendant should
receive a two-level reduction pursuant the safety-valve provision in U.S.S.G. § 5C1.2; (3) the
defendant should receive a reduction for his mitigating role in the offense under U.S.S.G. § 3B1.2.
The district court concluded that the 2001 Guidelines Manual applied and thus the appropriate base
offense level was thirty-eight. The district court then determined that the defendant was entitled to
a two-level reduction for specific offense characteristics under U.S.S.G. § 2D1.1(b)(6), a three-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) -(b), and a two-level reduction
pursuant to the safety-valve provision under U.S.S.G. § 5C1.2. Thus, the defendant’s total offense
level was thirty-one. The district court then concluded that the defendant’s criminal history category
was I. This placed the defendant in a sentencing range of 108 months’ imprisonment to 135 months’
imprisonment. The district court sentenced the defendant to 108 months’ imprisonment and three
years’ supervised release.
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II. ANALYSIS
On appeal, Patino raises three basic claims: (1) that the district court erred by denying his
motion to dismiss the indictment based on alleged violations of the Speedy Trial Act; (2) that the
district court sentenced him in violation of Booker; and (3) that the district court selected an
improper total offense level in determining the appropriate sentence under the federal sentencing
guidelines. We will address each of these claims in turn.
A. Speedy Trial Act
Patino argues that the district court erred in denying his motion to dismiss the indictment
based on his claims that delays by the prosecution violated the Speedy Trial Act. Whether the
district court erred in denying Patino’s motion is immaterial, however, if Patino waived his right to
appeal this decision based on the terms of his plea agreement. If the appellate-review waiver
contained in Patino’s plea agreement prevents Patino from challenging the district court’s denial of
Patino’s motion to dismiss, then we may not address this claim. We review de novo the question
of whether a defendant waived his right to appeal a district court’s decision based on the terms of
his plea agreement. See United States v. McGilvery, 403 F.3d 361, 362 (6th Cir. 2005).
Patino agreed, pursuant to his plea agreement, to waive his right to appellate review of his
conviction and sentence as to any claim not involving the district court’s imposition of a sentence
that was inconsistent with the plea agreement, ineffective assistance of counsel, or prosecutorial
misconduct. The plea agreement’s appellate-review-waiver provision thus operates as a general
waiver with three narrowly drawn exceptions. Patino’s Speedy Trial Act claim does not implicate
any of these three exceptions.1 We therefore must conclude that Patino’s challenge to the district
1
While Patino does not directly address the implications of the appellate-review waiver in
his brief, he does suggest that oral argument is warranted in part because “[t]he instant case involves
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court’s denial of his motion to dismiss on Speedy Trial grounds is barred by the plea agreement’s
appellate-review-waiver provision. See United States v. Allison, 59 F.3d 43, 46 (6th Cir.), cert.
denied, 516 U.S. 1002 (1995) (holding that a defendant is not permitted to raise on appeal claims
waived in a plea agreement); United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (noting
that “a defendant in a criminal case may waive any right, even a constitutional right, by means of
a plea agreement.”) (internal quotation marks and citation omitted).
B. Booker Claim
We may review Patino’s Sixth Amendment claim based on Booker despite the fact that the
Supreme Court did not issue its decision in Booker until after the district court sentenced Patino.2
See Booker, 125 S. Ct. at 769 (noting that the case’s holdings apply to all cases pending on direct
review). As Patino failed to raise a Booker challenge to his sentence in district court, however, we
can reverse only on a showing of “plain error” by the district court. United States v. Oliver, 397
F.3d 369, 375 (6th Cir. 2005).
serious constitutional questions regarding . . . whether [Patino was] afforded effective assistance of
counsel.” Appellant’s Br. at 1. This allegation of ineffective assistance of counsel is thereafter not
mentioned by the defendant elsewhere in his brief. We therefore do not consider this allegation as
a valid means of circumventing the plea agreement’s waiver provision. See Spirko v. Mitchell, 368
F.3d 603, 612 (6th Cir. 2004), cert. denied, 125 S. Ct. 1699 (2005) (“It is a settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived”) (internal quotation marks and citation omitted). Moreover,
nothing in the current record suggests that Patino’s trial counsel provided ineffective assistance of
counsel with respect to the claims raised on appeal. Normally we do not consider ineffective
assistance of counsel on direct appeal because of the lack of adequate record; the appropriate vehicle
for raising such claims is usually an application pursuant to 28 U.S.C. § 2255. United States v.
Jackson, 181 F.3d 740, 747 (6th Cir. 1999).
2
The appellate-review-waiver provision in Patino’s plea agreement would seem to waive
Patino’s right to challenge his sentence based upon Booker. The government has forfeited its right
to enforce this clause, however, by failing to raise the issue in its brief on appeal. See Hunter v.
United States, 160 F.3d 1109, 1113 (6th Cir.1998) (“[A]s with any other argument, the government
can forfeit a waiver argument by failing to raise it in a timely fashion.”).
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In this case no Sixth Amendment violation occurred in light of the Supreme Court’s decision
in Booker. Patino was sentenced not based upon judge-found facts, but rather only upon facts to
which he admitted in his plea agreement. See United States v. Webb, 403 F.3d 373, 381 (6th Cir.
2005) (no Sixth Amendment violation where the defendant admitted in his plea agreement the facts
upon which sentencing was based). Therefore, no constitutional infirmities were created by the
district court’s reliance on these facts to enhance Patino’s sentence. “The district court did err,
however, in determining [Patino’s] sentence based on the presumption that the Guidelines were
mandatory.” Id. Under our decision in United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), in
which we held that a remand for resentencing is appropriate now that the guidelines are advisory,
we find that the plain-error test is met in this case. The district court sentenced Patino to 108
months’ imprisonment, which was the lowest sentence possible in the appropriate guideline range.
Additionally, while the district court did deny Patino’s motion for a downward departure, the district
court acknowledged that there was some disparity in the sentence Patino received in comparison to
the sentences received by Patino’s codefendants. J.A. at 268 (Sentencing Tr. at 38). These facts at
least suggest that, “if the district court in this case had not been bound by the range prescribed in the
Guidelines, [Patino] may have received a lower sentence.” Barnett, 398 F.3d at 528. Finally,
although the district court stated that it believed the defendant was being sentenced in the
appropriate Guidelines range, we do not interpret this as “clear and specific evidence that the district
court would not have, in any event, sentenced the defendant to a lower sentence under an advisory
Guidelines regime.” Id. at 529. In context, the district court’s statement is ambiguous and could
be interpreted to suggest only that the district court felt its calculation of the offense level and
Guidelines range under the federal sentencing guidelines was accurate. We therefore vacate Patino’s
sentence and remand the case to the district court for resentencing consistent with Booker.
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C. Calculation of Offense Level
Patino’s final claim of error is that the district court erroneously calculated his total offense
level. Specifically Patino alleges that: (1) he ought to have received an additional reduction in his
offense under U.S.S.G. § 3B1.2 for being a minor participant in the underlying offense; (2) the
district court erred in denying Patino’s motion for a downward departure; and (3) the 2000
Guidelines Manual rather than the 2001 Guidelines Manual ought to have applied.
The plea agreement which Patino entered into with the government permitted him to raise
these challenges to the appropriate total offense level at sentencing before the district court. Thus,
Patino’s defense counsel properly raised each of these claims at sentencing. As discussed above,
however, the waiver provision in the plea agreement bars Patino from raising on appeal any claims
regarding the validity of his sentence, except in three limited circumstances: (1) where Patino
received a sentence inconsistent with the terms of the plea agreement; (2) where Patino was denied
effective assistance of counsel; or (3) where prosecutorial misconduct occurred. Like Patino’s
Speedy Trial Act claim, none of the sentencing errors raised by Patino regarding his total offense
level implicated any of these limited exceptions to the appellate-review-waiver provision.3
Therefore, while the plea agreement permitted Patino to raise these claims before the district court,
it bars Patino from raising them before us on appeal. See Calderon, 388 F.3d at 200 (noting that a
reservation of the right to raise an issue before the district court does not alter an otherwise valid
appellate-review waiver in a plea agreement which encompasses that issue). We thus dismiss these
claims as inconsistent with the plea agreement’s appellate-review-waiver provision.
3
As noted earlier, Patino’s suggestion of ineffective assistance of counsel in his statement
in support of oral argument is insufficient, without further elaboration in the brief, to circumvent the
plea agreement’s waiver.
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III. CONCLUSION
For the reasons discussed above, we VACATE Patino’s sentence and REMAND for
resentencing. As to the other errors raised by the defendant, we DISMISS the appeal regarding the
remaining claims as inconsistent with the appellate-review waiver in Patino’s plea agreement.
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