NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0201n.06
Filed: March 16, 2009
No. 07-4193
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
DESHAWN HUNTER, )
) OPINION
Defendant-Appellant. )
BEFORE: KEITH, COLE, and McKEAGUE, Circuit Judges.
PER CURIAM. In this appeal, defendant DeShawn Hunter challenges the validity of his
guilty plea made pursuant to a plea agreement. We AFFIRM.
I
On the afternoon of December 19, 2006, detectives of the Akron, Ohio, Police Department
observed defendant’s vehicle turn rapidly from one street to another without signaling. The vehicle
sped down a residential street at about forty-five miles per hour, struck a parked car, and then veered
into the foundation of a tattoo parlor. Defendant attempted to flee on foot, but the officers
apprehended him and recovered a firearm.
On January 17, 2007, defendant, a convicted felon, was indicted for knowingly possessing
a firearm in violation of 18 U.S.C. § 922(g)(1). After the district court denied defendant’s motion
No. 07-4193
United States of America v. Hunter
to suppress the weapon, defendant entered into a plea agreement with the government. Under the
agreement, defendant agreed to plead guilty to being a felon in possession of a firearm and to waive
several of his appellate rights.1 In exchange, the government stipulated to a base offense level of 24.
It also agreed to recommend that the district court grant a full three-level reduction of the offense
level for acceptance of responsibility under U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”)
§ 3E1.1. Finally, the government agreed to recommend that the district court “impose a sentence
within the range determined pursuant to the advisory Sentencing Guidelines.”
On September 5, 2007, defendant appeared before the district court for sentencing. The
district court determined that defendant had a base offense level of 24 and granted the government’s
motion for a full three-level reduction for acceptance of responsibility. The reduced total offense
level of 21, and a criminal history category of VI, yielded an advisory Guidelines range of 77 to 96
months. The district court imposed a term of 77 months’ imprisonment, to be served consecutively
to defendant’s state sentence for drug trafficking and to be followed by a three-year term of
supervised release. Defendant timely appealed.
II
A. Ineffective Assistance of Counsel
Defendant first argues that he received ineffective assistance of counsel because his attorney
allowed him to enter into a plea agreement that was not supported by adequate consideration.
Ordinarily, we do not review ineffective assistance of counsel claims on direct review. United States
1
The plea agreement preserved defendant’s right to appeal on claims of ineffective assistance
of counsel and prosecutorial misconduct.
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United States of America v. Hunter
v. Brown, 276 F.3d 211, 217 (6th Cir. 2002). “An exception exists, however, when the record is
adequately developed to allow this court to assess the merits of the issue.” United States v. Hall, 200
F.3d 962, 965 (6th Cir. 2000). Both the government and defendant argue, and we agree, that the
record below is adequately developed and that defendant’s ineffective assistance of counsel claim
can be taken up on direct appeal.
“[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985) (citing Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). To succeed on an ineffective assistance of counsel
claim, a defendant must demonstrate that (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial.
Id. at 59; Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998).
Here, defendant argues that defense counsel’s performance was deficient because his attorney
allowed him to enter into a plea agreement in which he waived most appellate rights but received
no concessions from the government. Indeed, because plea agreements are governed by general
principles of contract law, “the law does not permit a criminal defendant to bargain away his
constitutional rights without receiving in return . . . the benefit of his bargain.” United States v.
Brummett, 786 F.2d 720, 722 (6th Cir. 1986) (citing Bercheny v. Johnson, 633 F.2d 473, 476 (6th
Cir. 1980)). Despite defendant’s assertions to the contrary, however, the plea agreement at issue in
this case was clearly supported by adequate consideration.
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United States of America v. Hunter
First, in exchange for defendant’s guilty plea and waiver of most of his appellate rights, the
government agreed to stipulate to a base offense level of 24. In doing so, the government agreed to
forgo its right to seek a two-level enhancement of the offense level for reckless endangerment during
flight. See U.S.S.G. § 3C1.2 (“If the defendant recklessly created a substantial risk of death or
serious bodily injury to another person in the course of fleeing from a law enforcement officer,
increase by 2 levels.”). The factual record indicates that this enhancement would have likely applied
absent the plea agreement.
Second, the government agreed to recommend an additional one-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1, which decreased the Guidelines range from 85-
105 months to 77-96 months. A defendant may receive this extra one-level reduction—in addition
to the two-level reduction awarded by course—only upon motion of the government, United States
v. Smith, 429 F.3d 620, 627 (6th Cir. 2005), where the defendant has assisted authorities in a manner
that permits “the government to avoid preparing for trial and permit[s] the government and the court
to allocate their resources efficiently,” U.S.S.G. § 3E1.1(b). As long as the government does not
act arbitrarily or irrationally and is not motivated by race, religion, or other constitutionally
impermissible motives, it has broad discretion in determining whether to move for this additional
adjustment. Smith, 429 F.3d at 627-28; see also United States v. Newson, 515 F.3d 374, 378 (5th
Cir. 2008) (holding that the defendant’s refusal to waive his right to appeal was a proper basis for
the government to decline to make a § 3E1.1(b) motion, “as it is rationally related to the purpose of
the rule and is not based on an unconstitutional motive”). Moreover, several courts have held that
a plea agreement in which the government recommends an extra one-level reduction under §
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3E1.1(b) is supported by sufficient consideration. See United States v. Wesley, 13 F. App’x 257, 260
(6th Cir. 2001) (per curiam); see also United States v. Sanchez, 508 F.3d 456, 460 (8th Cir. 2007);
United States v. Hernandez, 134 F.3d 1435, 1437-38 (10th Cir. 1998).
Finally, the parties agreed to a within-Guidelines sentence: the government agreed not to
“request a sentence higher than the advisory Sentencing Guideline range” and defendant agreed “not
[to] request a sentence lower than the advisory Sentencing Guideline range.” This also constituted
sufficient consideration to support the plea agreement. United States v. Brunetti, 376 F.3d 93, 95
(2d Cir. 2004) (holding that plea agreement was supported by consideration where defendant
“decided to trade a guilty plea for a chance at a reduced sentence”); see also Teeple v. United States,
15 F. App’x 323, 327 (6th Cir. 2001) (“[W]hen the government agrees to recommend a certain
sentence . . . the benefit to the defendant is that it presents a ‘united front’ to the court.” (quoting
United States v. Camarillo-Tello, 236 F.3d 1024, 1028 (9th Cir. 2001))).
Ultimately, defendant’s mere dissatisfaction with the deal he struck does not rise to the level
of ineffective assistance of counsel. See Hunter, 160 F.3d at 1115; see also Brunetti, 376 F.3d at 95.
Because the plea agreement was supported by sufficient consideration, defendant’s ineffective
assistance of counsel claim is without merit. United States v. Kolmiller, No. 07-4056, 2008 WL
5411778, at *2 (3d Cir. Dec. 30, 2008) (holding that counsel was not ineffective because plea
agreement was supported by consideration).
B. Validity of Plea Agreement
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United States of America v. Hunter
Defendant also argues that his plea agreement is not binding and must be set aside for lack
of consideration. Because we conclude that the plea agreement was supported by adequate
consideration, it is binding and enforceable.
III
For the foregoing reasons, we AFFIRM.
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