United States v. Magouirk

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0429p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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-
No. 05-5960
v.
,
>
SCOTTIE R. MAGOUIRK, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 04-00021—R. Allan Edgar, District Judge.
Argued: November 1, 2006
Decided and Filed: November 20, 2006
Before: GILMAN and GRIFFIN, Circuit Judges; GWIN, District Judge.*
_________________
COUNSEL
ARGUED: Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur, Georgia, for
Appellant. Christopher D. Poole, ASSISTANT UNITED STATES ATTORNEY, Chattanooga,
Tennessee, for Appellee. ON BRIEF: Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN,
Decatur, Georgia, for Appellant. Christopher D. Poole, ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
_________________
OPINION
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RONALD LEE GILMAN, Circuit Judge. A federal grand jury indicted George Bryant,
Crystal Keel, Scottie Magouirk, and Richard Whited on ten counts relating to the manufacture and
use of methamphetamine. Following a jury trial in Bryant’s case and guilty pleas in the cases of
Keel, Magouirk, and Whited, the district court imposed sentences of 100, 188, 151, and 151 months
in prison, respectively. Magouirk explicitly agreed in both his plea agreement and plea colloquy to
have his sentence governed solely by the U.S. Sentencing Guidelines notwithstanding Booker.
Despite this agreement, he now claims that his sentence was unreasonable because the district court
failed to adequately consider the sentencing factors enumerated in 18 U.S.C. § 3553(a). For the
reasons set forth below, we AFFIRM the 151-month sentence imposed by the district court.

*
The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.

1
No. 05-5960 United States v. Magouirk Page 2

I. BACKGROUND
A. Procedural background
The grand jury charged Magouirk in three counts of the ten-count indictment that also named
Bryant, Keel, and Whited as codefendants. Magouirk pled guilty to Count One in exchange for the
government’s dismissal of the remaining two counts against him. Count One charged Magouirk
with conspiracy to knowingly manufacture methamphetamine between January of 2001 and April
22, 2004, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The district court accepted
Magouirk’s guilty plea, as well as those of Keel and Whited, during a joint rearraignment hearing
held in February of 2005. A probation officer then prepared a Presentence Report (PSR) in which
she calculated Magouirk’s Guidelines range to be between 151 and 188 months of imprisonment.
In June of 2005, the district court chose the low end of the recommended range, sentencing
Magouirk to 151 months in prison. This timely appeal followed.
B. Factual background
Because Magouirk’s argument on appeal relates to only the procedural, as opposed to the
substantive, aspects of his sentence, the details of his involvement in the methamphetamine
conspiracy are not at issue. Instead, the resolution of this case turns on the plea agreement between
Magouirk and the government. The key language in the plea agreement is found in paragraph 6,
which reads as follows:
6. Pursuant to Rule 11(c)(1)(C), the parties expressly agree that [the]
appropriate sentence in this case will be determined by application of the United
States Sentencing Guidelines. The parties agree that the sentencing court may
consider any reliable evidence, including hearsay, in determining the guideline
sentence and that the preponderance of the evidence standard will be applied. The
defendant agrees to waive any challenge to the validity of the Sentencing Guidelines.
The defendant acknowledges that he understands that nothing contained in the plea
agreement or any factual basis limits the Court in its application of the Sentencing
Guidelines or in the facts it may consider in establishing a Sentencing Guidelines
range or an appropriate sentence and that any sentence imposed under the Sentencing
Guidelines is nonparolable.
Of lesser importance is paragraph 11 of the plea agreement, which generally waives Magouirk’s
right to appeal his conviction. Magouirk did not, however, waive the right to appeal his sentence.
At the February 2005 joint rearraignment hearing, the district court asked the government
to summarize the terms of each defendant’s plea agreement. The government responded by
distinguishing Magouirk’s agreement from the agreements of both Keel and Whited as follows:
Mr. Whited and Ms. Keel’s agreements state that the sentence will be determined
within the discretion of the Court as restrained by law, and, basically, sets out that
the guidelines will be considered although they are not mandatory, as well as other
factors of 18 U.S.C. Section 3553 will be considered.
Mr. Magouirk’s is a little different in that he is agreeing and we are agreeing with
him subject to the Court’s approval that he be sentenced under the guidelines. That’s
the only difference. He requests that the guidelines will determine his sentence.
Shortly thereafter, the district court, seeking clarification, engaged Magouirk individually
as follows:
No. 05-5960 United States v. Magouirk Page 3

THE COURT: Now, Mr. Magouirk, you understand that your plea
agreement, and I’ll talk about this a little bit more later, but
do you understand that you are agreeing, as I understand it,
that your sentence will be governed by the Federal
Sentencing Guidelines?
MAGOUIRK: Yes, sir.
THE COURT: Is that correct, you’ve discussed that?
COUNSEL: Yes, Your Honor. We have had several conversations. The
Booker decision obviously involves discretionary sentencing
versus guideline sentencing, and —
THE COURT: Okay.
COUNSEL: —that was Mr. Magouirk’s decision.
THE COURT: Okay. That’s fine. And we’ll talk, as I said, we’ll talk a little
more about the guidelines in just a moment here.
...
THE COURT: [H]ave you discussed the Federal Sentencing Guidelines and
your possible sentences with your respective attorneys?
...
MAGOUIRK: Yes, sir.
...
THE COURT: Okay. Let me tell you what’s going to happen from here on
out in this case with respect to each of you. . . .
With respect to Ms. Keel and Mr. Whited, I will consider
those guidelines when I set your sentence, but I won’t
necessarily be bound by them. I could consider other factors
as well. But at any rate, the sentence, the guidelines will be
something that I will look at.
With respect to Mr. Magouirk, the guidelines will be, the
sentence will be somewhere within those guidelines however
they’re determined.
Do you understand that?
MAGOUIRK: Yes, Sir.
In June of 2005, Magouirk filed a motion for a Guidelines-authorized downward departure
based on five separate grounds, as well as a sixth residual ground representing a “combination” of
the other five. The five specific grounds alleged by Magouirk were that (1) his participation in the
conspiracy was minimal, (2) the amount of drugs involved accumulated over a long period of time,
(3) his conduct was less serious than the typical conduct covered by “the heartland of the
guidelines,” (4) he suffered both mental and physical abuse during childhood, and (5) he was held
No. 05-5960 United States v. Magouirk Page 4

in solitary confinement for approximately four and a half months. In a separate sealed motion filed
that same month, Magouirk asserted a final ground for the departure—namely, that he had
cooperated with and rendered assistance to the government on multiple occasions and with regard
to multiple other crimes.
At Magouirk’s subsequent sentencing hearing, his counsel yet again confirmed Magouirk’s
desire to be sentenced according to the Guidelines, engaging in the following preliminary exchange
with the district court:
THE COURT: Well, I mean—yeah. I mean, as far as sentencing is
concerned. But, in other words, you want a sentence outside
of the guidelines [by way of a departure or variance]?
COUNSEL: I think he’s entitled to that, yes, sir.
THE COURT: Yeah. And even though in your plea agreement you wanted
him to be sentenced in the guidelines?
COUNSEL: May it please the Court, the agreement is that to the
sentencing guidelines. The sentencing guidelines law also
provides, however, for a 5K1 motion which Your Honor can
sustain and set a lower guideline.
(Emphasis added.)
Both Magouirk’s counsel and the government argued at length their respective positions on
Magouirk’s downward-departure motion later in the hearing. After listening to argument on the first
six grounds raised by Magouirk, the district court convened a sidebar to discuss separately the issue
of Magouirk’s cooperation with the government. When the court noted during the sidebar that “I
don’t grant 5Ks if that’s what we’re talking about here under Booker, unless the government makes
them,” Magouirk reminded the court of its discretion to award a downward departure where the
government’s failure to move for one is the result of bad faith. The district court specifically
considered this exception, but concluded that it did not apply:
Okay. I’m not going to grant a 5K [downward departure] in the case because I don’t,
from everything that I’ve heard here, I don’t think that the government is acting in
bad faith. And I don’t think that—let’s put it this way—whether there is or not, I
think that there is a basis for the government to believe that he has not rendered
substantial assistance. I mean, he’s rendered some assistance, but he hasn’t rendered
substantial assistance.
After allowing Magouirk one final opportunity to advocate his position regarding cooperation and
after hearing the government’s response that “[t]here are problems with [Magouirk] as a witness,”
the court reiterated its view that “this is not a close case.”
The district court then stated in open court its position as to each of the other five grounds
enumerated by Magouirk, concluding that none (nor the combination of all five) sufficed to warrant
a downward departure from the Guidelines range of 151 to 188 months’ imprisonment as proposed
in the PSR. Having denied Magouirk’s motion on all grounds, the district court sentenced Magouirk
to 151 months in prison. The court finally asked, as “I have to,” whether “there are any objections
to the sentence that’s just been pronounced here or the presentence report or anything else that this
Court has not already dealt with here this afternoon?” Magouirk’s counsel responded: “No, Your
Honor.”
No. 05-5960 United States v. Magouirk Page 5

II. ANALYSIS
A. Standard of review
Post-Booker, we will not overturn a sentence imposed by a district court unless that sentence
is unreasonable. United States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006). Reasonableness
review has “both substantive and procedural components.” United States v. Jones, 445 F.3d 865,
869 (6th Cir. 2006). A sentence will be deemed procedurally unreasonable if “the district judge fails
to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed in
18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence
without such required consideration.” United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)
(footnote omitted); see also United States v. McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006) (noting
that “[a] district court’s failure to explicitly consider the section 3553(a) factors without other
evidence in the record demonstrating that they were thoroughly considered . . . would result in a
procedurally unreasonable” sentence).
B. Discussion
Under normal circumstances, a district court judge who treats the Guidelines as mandatory
in imposing a sentence in this post-Booker world necessarily commits plain error. United States v.
Oliver, 397 F.3d 369, 379-81 (6th Cir. 2005) (“Here, at the time of sentencing it was uncontested
that mandatory federal guideline sentencing enhancements based on judge-found fact presented no
Sixth Amendment concerns; however, by the time of appellate consideration, the law changed, and
it is now evident that the district court’s sentencing determination was in clear violation of
Booker.”). Equally clear, however, is that a defendant may waive the right to appeal his sentence,
typically but not necessarily subject to certain limitations. See, e.g., United States v. Bradley, 400
F.3d 459, 464 (6th Cir. 2005) (upholding as valid the defendant’s waiver of the right to appeal his
sentence directly or collaterally, save for claims of ineffective assistance of counsel or prosecutorial
misconduct). Waiver may be implied even if not expressly stated, as long as the right being waived
is actually known to the defendant. Carter v. Sowders, 5 F.3d 975, 981 (6th Cir. 1993) (concluding
that, because Carter was not sufficiently aware of his right to confront a particular witness against
him, Carter did not impliedly waive that right). Analyzing waiver and related issues is, at bottom,
a fact-specific and right-specific inquiry:
Whether a particular right is waivable; whether the defendant must participate
personally in the waiver; whether certain procedures are required for waiver; and
whether the defendant’s choice must be particularly informed or voluntary, all
depend on the right at stake.
United States v. Olano, 507 U.S. 725, 733 (1993).
The record in the present case, as reproduced in pertinent part above, leaves little doubt that
Magouirk, through his plea agreement and plea colloquy, in fact waived his Booker right to the
advisory application of the Guidelines, instead binding himself to be sentenced solely according to
the Guidelines. This waiver, moreover, was made voluntarily; that is, “knowingly, intelligently, and
with sufficient awareness of the relevant circumstances and likely consequences.” See United States
v. Ruiz, 536 U.S. 622, 629 (2002) (brackets omitted). The colloquy between the district court and
Magouirk, reproduced above, establishes the relevant facts. In short, the government is correct in
arguing that “the record conclusively shows that defendant intentionally and knowingly negotiated
in his plea agreement for a binding provision that limited his sentence in accordance with the
Guidelines range and any Chapter 5 departures.”
Our analysis, however, does not end simply because we adopt this conclusion. Determining
that Magouirk waived the advisory application of the Guidelines, in other words, does not directly
No. 05-5960 United States v. Magouirk Page 6

resolve Magouirk’s principal argument on appeal, which we understand to be that the advisory
application of the Guidelines, and the related consideration of the 18 U.S.C. § 3553(a) statutory
factors, is per se nonwaivable after Booker. Magouirk confirms this understanding in his reply brief,
where he states that “Appellant[] is asking this Honorable Court to determine [] whether a plea
agreement binding the district court to the guidelines is available post-Booker.”
Because the right to be sentenced under an advisory application of the Guidelines is best
construed as a waivable right, we answer this question in the affirmative. For a given right to be
nonwaivable means that the right is so sacred and absolute that its waiver, as a matter of law, simply
cannot be made voluntarily. “There may be some nonwaivable rights: ones so fundamental to the
reliability of the factfinding process that they may never be waived without irreparably discrediting
the federal courts.” Halbert v. Michigan, 125 S. Ct. 2582, 2602 (2005) (Thomas, J., dissenting)
(quoting United States v. Mezzanatto, 513 U.S. 196, 204 (1995)) (quotation marks omitted).
But an assertion of nonwaivability carries a heavy burden for the simple reason that our
analysis starts “against a background presumption that legal rights generally . . . are subject to
waiver by voluntary agreement of the parties.” Mezzanatto, 513 U.S. at 203. Among these legal
rights are “[t]he most basic rights of criminal defendants,” Peretz v. United States, 501 U.S. 923, 936
(1991), including “many of the most fundamental protections afforded by the Constitution.”
Mezzanatto, 513 U.S. at 201 (citing, among other things, the double jeopardy defense, the right to
a jury trial, the right to confront one’s accusers, and the right to counsel). The presumption of
waivability applies equally to statutory rights. Id. (“Likewise, absent some affirmative indication
of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to
waiver by voluntary agreement of the parties.”).
This court has addressed a similar—though, crucially, not identical—issue in several cases
decided in the wake of Booker. Principally, in United States v. Bradley, 400 F.3d 459 (6th Cir.
2005), the court held that Bradley had waived his right to appeal his sentence except on certain
inapplicable grounds because Bradley’s plea agreement (1) had specified such a waiver, and (2) had
explicitly acknowledged that the Guidelines would govern Bradley’s sentence. Id. at 461. The court
also implied that either of these two provisions was sufficient to create a waiver of Bradley’s right
to appeal his sentence. Id. at 465 (“reaching this conclusion both with respect to Bradley’s
agreement that he would be sentenced under the Guidelines and his waiver of the right to appeal”).
Two of the cases cited by Magouirk have since clarified the scope of Bradley’s holding.
First, in United States v. Amiker, 414 F.3d 606, 607 (6th Cir. 2005), the court explicitly declined to
recognize as “an alternative holding in Bradley” the suggestion “that a defendant, by explicitly
agreeing to be sentenced under the Guidelines, waives any right to Booker-resentencing.” The
Amiker court instead relegated this suggestion to dicta, explaining that “we think this language in
Bradley is best interpreted as merely additional rationale serving only to buttress the court’s decision
that the defendant had waived his right to appeal.” Id.; see also United States v. Turner, 173 F.
App’x 402, 406 (6th Cir. 2006) (unpublished) (citing Amiker in reiterating that “[t]he Bradley
court’s opinion regarding the sufficiency of an agreement that the Guidelines would govern
sentencing is dicta . . . .”). Amiker, who had not waived his right to appeal his sentence in his plea
agreement, was accordingly entitled to resentencing in light of Booker. Amiker, 414 F.3d at 607.
The Amiker opinion thus stands for the proposition that “where a plea agreement does not include
an appeal waiver, an explicit agreement to be sentenced under the Guidelines carries no independent
significance.” Id. at 608.
In United States v. Puckett, 422 F.3d 340, 343 (6th Cir. 2005), the other relevant case cited
by Magouirk, the court confirmed the Amiker court’s understanding of Bradley:
No. 05-5960 United States v. Magouirk Page 7

As in Amiker, Puckett did not expressly waive his right to appeal in the plea
agreement, and thus the current situation falls outside the reach of Bradley. The
mere fact that Puckett agreed to be, and was, sentenced pursuant to the Sentencing
Guidelines, does not preclude him from raising on appeal an alleged Booker error
regarding his sentence.
Id. (citations omitted).
As in both Amiker and Puckett, Magouirk did not expressly waive his right to appeal his
sentence in his plea agreement. The government in fact clarified for the district court at the
rearraignment hearing that “[o]f course, [the defendants] can appeal their sentences. There is
nothing in there about that, Judge.” Bradley, accordingly, does not apply. Nor, however, does
Amiker or Puckett. Because Magouirk entered into his plea agreement in February of 2005—after
the Supreme Court had already decided Booker—neither Amiker nor Puckett is directly on point.
For the same reason, we find nothing on point in the numerous other published and unpublished
opinions from this circuit where the plea agreement was accepted by the district court before Booker
was decided. See, e.g., Hochschild v. United States, 442 F.3d 974, 979-81 (6th Cir. 2006)
(remanding for resentencing where the pre-Booker waiver “cannot be read to cover statutory rights
which flowed from Booker’s remedial holding”). Magouirk’s case thus presents an issue of first
impression in this circuit.
The issue, in other words, is whether a defendant who, through a valid plea agreement
entered into after the Supreme Court’s January 12, 2005 decision in Booker, stipulates that the
Guidelines will govern his sentence despite Booker, but who does not explicitly waive his general
right to appeal his sentence, nonetheless effectuates a waiver of his specific right to appeal his
sentence on the grounds of a Booker violation. (Magouirk’s right to appeal his sentence on any non-
Booker grounds is not being challenged.)
As an initial matter, none of our sister circuits appear to have addressed, much less resolved,
this issue. We therefore look principally to the reasoning underlying this court’s relevant caselaw
in setting forth our analysis. The implicit justifications for the holdings in Amiker and Puckett
simply do not apply to plea agreements entered into after Booker was decided. In Amiker, the court
reflected on the pre-Booker state of affairs regarding plea bargaining to make the point that a request
to have one’s sentence governed by the Guidelines was in fact totally unexceptional. Amiker, 414
F.3d at 607 (“At the time of Amiker’s plea agreement and sentencing [i.e., pre-Booker], all plea
agreements required, either explicitly or implicitly, that a defendant agree to sentencing under the
Guidelines.”). Now, of course, Booker is established law, and the district courts are required to treat
the Guidelines as advisory only. A defendant like Magouirk who nonetheless prefers to be
sentenced under the old mandatory scheme will therefore be requesting an exception to the rule.
Whether this exception can and should be granted is precisely the issue that we now have to decide.
In Amiker, Puckett, and the host of similar decisions referenced above, the court either stated
or implied that the error regarding the defendant’s sentence was based on the district court’s
assumption that the Guidelines were mandatory. See, e.g., Hochschild, 442 F.3d at 979 (“The
district court erred by sentencing Hochschild under the erroneous assumption that the sentencing
guidelines were mandatory.”). Here, to the contrary, the district court was not only fully aware of
the post-Booker advisory status of the Guidelines, but made sure that Magouirk was aware of that
status as well. The portions of the plea colloquy reproduced above leave no doubt about this
conclusion. As Magouirk’s counsel specifically noted: “Yes, Your Honor. We have had several
conversations. The Booker decision obviously involves discretionary sentencing versus guideline
sentencing, and . . . that was Mr. Magouirk’s decision [to have his sentence governed by the
Guidelines].” That Magouirk’s counsel made this statement, as opposed to Magouirk himself, is of
little consequence. See Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (“Where a defendant is
No. 05-5960 United States v. Magouirk Page 8

represented by competent counsel, the court usually may rely on that counsel’s assurance that the
defendant has been properly informed of the nature and elements of the charge to which he is
pleading guilty.”).
Magouirk further argues that upholding his sentence on the ground of waiver would risk
creating bad policy because “[t]he government, in pursuing Rule 11(c)(1)(C) plea agreements, will
be permitted to circumvent the Booker change in the law by creating mandatory guidelines where
they no longer exist and render 18 U.S.C. § 3553 meaningless.” At oral argument, moreover,
Magouirk’s counsel conceded that this “public policy” argument constitutes the core of the appeal,
contending that affirmance in the present case would effectively function as a “tool of the
government” to recreate a “mandatory Guidelines system using a back door” that would “circumvent
the Booker change in the law.”
The facts of this very case, however, belie Magouirk’s argument. As the government
suggests in its brief, defendants may well have strategic reasons for doing in the future precisely
what Magouirk did here. At a very basic level, the Guidelines afford defendants a degree of
predictability that the Booker discretionary scheme by definition cannot. A district court, moreover,
will not necessarily impose a more lenient sentence simply because the Guidelines are no longer
mandatory, as the recent fallout in the case of Booker’s coappellant Duncan Fanfan makes painfully
obvious. See United States v. Fanfan, — F.3d —, 2006 WL 3217712 (1st Cir. Nov. 8, 2006)
(affirming Fanfan’s post-Booker sentence of 210 months in prison, even though his pre-Booker
sentence was only 78 months); see also United States v. Elliott, — F.3d —, —, 2006 WL 3093641,
at *4 (7th Cir. Nov. 2, 2006) (“More discretion [in light of Booker] can produce higher sentences
as well as lower ones.”).
The consideration of all of the factors set forth in 18 U.S.C. § 3553(a) might well lead a
district court to sentence a defendant to the high end of the advisory Guidelines range, if not above
it. A properly informed defendant in such a case might therefore help his cause by requesting that
his sentence be governed solely by the Guidelines, including the possibility that the government will
file a § 5K1.1 motion for a downward departure. This would make a sentence at the high end of the
Guidelines range the worst-case scenario for most defendants, while retaining the chance for a
below-the-range sentence.
Magouirk followed this path in the present case and, notwithstanding the district court’s
refusal to depart downward, it worked. The district court sentenced Magouirk to 151 months in
prison, the lowest possible sentence that he could have received under the Guidelines absent a
downward departure. His sentence, moreover, was equivalent in length to Whited’s and 37 months
shorter than Keel’s, even though both of those sentences, unlike Magouirk’s, resulted from the
district court’s advisory application of the Guidelines. Magouirk, in other words, did himself no
harm by effectively opting out of Booker; if anything, he saved himself significant additional time
in jail. In any event, it was Magouirk, not the government, who was “permitted to circumvent the
Booker change in the law.” Magouirk’s “tool” argument thus has it backwards: Allowing the
waiver of Booker rights will give defendants an additional “tool,” providing them with another plea
option that they will now be able to pursue with the government.
We therefore hold that a defendant may voluntarily waive his or her Booker rights, provided
that the waiver is made “knowingly, intelligently, and with sufficient awareness of the relevant
circumstances and likely consequences.” See United States v. Ruiz, 536 U.S. 622, 629 (2002)
(brackets omitted). The proper focus remains on the terms of the plea agreement and the words
exchanged during the plea colloquy. Because Magouirk effectively and voluntarily waived his right
to appeal his sentence on the ground that the district court should have considered the Guidelines
as advisory only, and because his sentence at the very bottom of the applicable Guidelines range was
No. 05-5960 United States v. Magouirk Page 9

not otherwise unreasonable, we uphold the district court’s decision to sentence Magouirk to 151
months in prison.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.