NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0300n.06
Filed: April 22, 2009
No. 07-2464
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. On appeal from the United States
District Court for the Eastern District
HUSSEIN GERALD HILL, of Michigan
Defendant-Appellant.
/
BEFORE: RYAN, GIBBONS, and SUTTON, Circuit Judges.
RYAN, Circuit Judge. Hussein Gerald Hill appeals from the sentence he
received after pleading guilty in federal district court to one count of conspiracy to possess
with intent to distribute marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1). For reasons
set forth below, we dismiss this appeal.
I.
On July 12, 2005, a federal grand jury returned an indictment against Hill (case 05-
CR-80636), charging him with: conspiracy to possess with intent to distribute marijuana,
in violation of 21 U.S.C. §§ 846, 841(a)(1) (Count One); possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count Two); possession of a firearm in
furtherance of and in relation to a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A) (Count Three); and possession of a firearm with an obliterated serial number,
in violation of 18 U.S.C. § 922(k) (Count Four).
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Hill entered into a Rule 11 plea agreement, whereby he agreed to plead guilty to
Count One of the indictment and the government would dismiss Counts Two and Four.
The parties agreed to a sentencing range of 30 to 37 months’ imprisonment. The
agreement required Hill to provide substantial assistance in the investigation and
prosecution of others involved in criminal activities. The agreement also stated:
It is exclusively within the government’s discretion to determine whether
defendant has provided substantial assistance. Upon the government’s
determination that defendant’s cooperation amounts to substantial
assistance in the investigation or prosecution of others, the government will
either seek a downward departure at sentencing under U.S.S.G. § 5K1.1, or
a reduction of sentence pursuant to Fed. R. Crim. P. 35, as appropriate, or,
if deemed yet more appropriate, will simply seek to dismiss Count
Three of the indictment as it relates to defendant at sentencing, which
charges a violation of Title 18, United States Code, Section 942(c) [sic]
and mandates the imposition of a 5 year minimum, consecutive, term
of imprisonment upon conviction.
The plea agreement also contained a waiver of appeal provision, stating: “If the
sentence imposed falls within, or below, the guideline range [as noted in this agreement]
. . . defendant waives any right to appeal his conviction or sentence.”
On November 14, 2006, the district court accepted the plea agreement. On
December 15, 2006, police arrested Hill on a federal counterfeiting offense. An indictment
followed (case 07-CR-20012), charging Hill with: manufacturing counterfeit obligations, in
violation of 18 U.S.C. § 471 (Count One); and felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1) (Count Two). The government offered Hill a plea
agreement for case 07-20012, offering to dismiss Count Three in case 05-80636—the §
924(c) charge that carried a statutorily mandated five year sentence—if Hill pleaded guilty
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to Counts One and Two in the counterfeit case (07-20012) and served a 37 to 46 month
sentence consecutive to the drug case (05-80636) sentence.
On April 24, 2007, Hill informed the court that he rejected the plea offer for case 07-
20012. Additionally, Hill moved to withdraw his earlier guilty plea to Count One in case 05-
80636. Hill argued that he had “a meritorious defense to the drug and gun charges, that
he is innocent of the charges,” and that “[f]ear and inexperience drove his decision to plead
guilty.” Hill also noted that the government indicated that if he did not accept the plea for
case 07-20012, it would proceed to trial on the remaining count in the original indictment,
namely, Count Three, the § 924(c) charge.
The district court denied Hill’s motion to withdraw. On July 31, 2007, a jury trial
commenced in case 05-80636 for Count Three, the § 924(c) charge. Before jury selection,
Hill, representing himself, objected to the government moving forward on the trial, because,
according to Hill, it represented a breach of the plea agreement. The government
responded that, under the terms of the agreement, it retained discretion to move forward
on Count Three. Moreover, Hill failed to provide substantial assistance because he
became “useless” as a potential witness due to his subsequent counterfeit indictment. The
district court held that the government could proceed with the trial, and a jury found Hill
guilty on Count Three, the § 924(c) charge.
In case 07-20012, Hill pleaded guilty, without a plea agreement, to Count One (the
counterfeit charge), and proceeded to a bench trial on Count Two (the ammunition charge),
where the district court found him not guilty.
The district court held one sentencing hearing for cases 05-80636 and 07-20012.
The district court sentenced Hill to: 33 months’ imprisonment for Count One in case 05-
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80636, as contemplated in the plea agreement; a mandatory consecutive five years’
imprisonment for Count Three in case 05-80636; and 33 months’ imprisonment for Count
One in case 07-20012, to be served concurrently with the 33 month sentence imposed in
05-80636.
Hill now appeals from case 05-80636.
II.
Hill argues that the government failed to make adequate substantial assistance
findings to support its refusal to either move for a U.S.S.G. § 5K1.1 downward departure
or dismiss Count Three in Hill’s indictment, as set out in the Rule 11 plea agreement.
Additionally, Hill argues that “[t]he government attempted to deprive [him] of his
constitutional right to trial by making its compliance with the provisions of the Rule 11 Plea
Agreement in one case dependent upon [his] agreement to sacrifice his Sixth Amendment
right to trial in another case.”
We review whether a defendant waived his right to appeal his sentence in a valid
plea agreement de novo. United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005).
The plea agreement’s content and the parties’ agreements are questions of fact that we
review for clear error. United States v. Lukse, 286 F.3d 906, 909 (6th Cir. 2002).
Because plea agreements are contractual in nature, they are interpreted according
to traditional principles of contract law. Id. The government is not required to present
formal findings on its assessment of whether substantial assistance has been rendered;
a “simple denial of the value of such assistance in open court” may suffice. Id. at 912. In
plea agreements where the government reserves unilateral discretion to determine the
appropriateness of a § 5K1.1 motion or other reductions, we “may only review the
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government’s refusal to file the motion to determine whether its decision was based on
unconstitutional motives.” Id. at 909.
A criminal defendant “may waive [his] right to appeal as part of a plea agreement
so long as the waiver is made knowingly and voluntarily.” United States v. Swanberg, 370
F.3d 622, 625 (6th Cir. 2004). Hill’s plea agreement states that if his sentence for Count
One falls between 30 and 37 months’ imprisonment, Hill “waives any right to appeal his
conviction or sentence.” The district court accepted Hill’s plea as knowingly and voluntarily
made, a fact Hill does not dispute on appeal. The district court sentenced Hill on Count
One to 33 months’ imprisonment. Therefore, pursuant to the terms of the valid plea
agreement, Hill waived his right to appeal his sentence. While Hill did not waive his right
to challenge his conviction on Count Three in case 05-80636, he presents an argument for
Count One only. We therefore dismiss Hill’s appeal based on his valid waiver. See United
States v. McGilvery, 403 F.3d 361, 363 (6th Cir. 2005).
Even assuming arguendo that we could entertain Hill’s appeal, we are limited to
reviewing the government’s discretionary decision for unconstitutional motives. The only
constitutional issue raised by Hill on appeal is that the government violated his Sixth
Amendment right to a jury trial for his counterfeit case, 07-20012, which is not the case
before us today.
The government twice provided adequate findings as to its decision to not move for
a § 5K1.1 departure or dismiss Count Three. During Hill’s motion to withdraw his plea and
again at the beginning of Hill’s trial on Count Three, the government stated that Hill’s
subsequent arrest on the counterfeit charge “effectively nullifie[d] his efforts” and made him
“useless” as a potential witness. The plain language of the plea agreement allowed the
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government to unilaterality determine Hill’s substantial assistance. Nothing in the plea
agreement obligated the government to dismiss Count Three and there always remained
a possibility that the government could go forward with prosecution on that count. Hill fails
to demonstrate any unconstitutional motive on the part of the government or any error on
the part of the district court.
III.
For the foregoing reasons, we DISMISS this appeal.