RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0167p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
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Plaintiff-Appellee, │
> No. 20-3330
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v. │
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KISHA C. HOLLINS-JOHNSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:19-cr-00170-1—Edmund A. Sargus, Jr., District Judge.
Decided and Filed: July 26, 2021
Before: SUTTON, Chief Judge; SILER and ROGERS, Circuit Judges.
_________________
COUNSEL
ON MOTION TO DISMISS APPEAL: Kimberly Robinson, UNITED STATES
ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF AND RESPONSE:
Christopher B. Sullivan, LEWIS THOMASON, Memphis, Tennessee, for Appellant.
_________________
ORDER
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Defendant Kisha C. Hollins-Johnson appeals the district court’s judgment in her criminal
case after pleading guilty to student loan fraud and theft of government funds, conspiracy to
commit those crimes, making false statements to the U.S. Department of Housing and Urban
Development, and witness tampering. The government moves to dismiss the appeal based on the
appellate-waiver provision in Hollins-Johnson’s plea agreement. Hollins-Johnson responds that
No. 20-3330 United States v. Hollins-Johnson Page 2
the appellate waiver in her plea agreement does not expressly cover a challenge to “the manner
in which a sentence is to be served and the timing of the sentence.”
“Criminal defendants may waive their 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) (citing United States v. Fleming, 239 F.3d 761, 763–64 (6th Cir. 2001)), and
Hollins-Johnson does not argue that the appellate waiver was not knowing or voluntary. Instead,
she argues that the appellate waiver does not include challenges to the manner or timing of the
sentence. In relevant part, the waiver reads: “Defendant waives the right to appeal the
conviction and sentence imposed, except if the sentence imposed exceeds the statutory
maximum.” The sentence imposed did not exceed the statutory maximum for any of
Hollins-Johnson’s crimes. See 18 U.S.C. §§ 371, 641, 1010, 1512(b)(3); 20 U.S.C. § 1097(a).
Hollins-Johnson correctly notes that plea waiver ambiguities are construed against the
government, but her waiver is not ambiguous. She was not sentenced in excess of the statutory
maximum, so her appeal is barred; a challenge to the manner or timing of her sentence is a
challenge to the sentence imposed.
The cases Hollins-Johnson cites in support of her argument to the contrary are
unpersuasive. To begin with, none of them squarely addresses the issue raised in her appeal:
whether a broad waiver of the right to appeal a sentence encompasses an appeal from the denial
of a request for home confinement or a request for an arrangement of sentences such that both
parents would not be simultaneously incarcerated. One case she cites, United States v. Fitch,
282 F.3d 364, 366 (6th Cir. 2002), did not involve an appellate waiver at all.
Hollins-Johnson leans heavily on United States v. Bowman, which involved a plea waiver
that read: “[T]he Defendant knowingly waives the right to appeal any sentence which is at or
below the maximum of the guideline range as determined by the court. The Defendant retains
the right to appeal a sentence above the guideline range.” 634 F.3d 357, 360 (6th Cir. 2011).
We concluded that the waiver did not bar an appeal from the district court’s decision under
U.S.S.G. § 5G1.3(c) to run Bowman’s federal term consecutive to a state sentence. Id. at 361.
We reasoned that, because the waiver specifically barred some appeals but was silent as to
No. 20-3330 United States v. Hollins-Johnson Page 3
others, it was ambiguous as to whether Bowman’s appeal was barred. Id. We also reasoned that
“[t]he government could have avoided any imprecision on this issue by including language that
would have precluded Bowman from challenging the district court’s application of U.S.S.G.
§ 5G1.3, but it did not do so.” Id. We have relied on Bowman to reach a similar conclusion in
United States v. Kelley, 585 F. App’x 310, 313 (6th Cir. 2014) (per curiam) (challenging the
district court’s application of § 5G1.3(c)).
But Hollins-Johnson’s waiver is much broader and more absolute than Bowman’s;
Bowman’s waiver barred only his right to appeal a sentence at or below the guideline range
while Hollins-Johnson agreed to waive her right to challenge her sentence on any grounds so
long as she was not sentenced above the statutory maximum. We have, on multiple occasions,
declined to follow Bowman in cases involving broad waivers like the one Hollins-Johnson made.
See United States v. Darby, 549 F. App’x 499, 501 (6th Cir. 2014); United States v. Ellis, 500 F.
App’x 482, 483–84 (6th Cir. 2012); United States v. Callier, 565 F. App’x 423, 425–26 (6th Cir.
2014); United States v. Watkins, 603 F. App’x 387, 391–92 (6th Cir. 2015); United States v.
Allen, 635 F. App’x 311, 314–15 (6th Cir. 2016). The facts of Hollis-Johnson’s case much more
closely follow these cases than the facts in Bowman.
Hollins-Johnson also cites United States v. Whitelow, 596 F. App’x 382, 385 (6th Cir.
2015). In that case, the government moved to dismiss based on Whitelow’s waiver of the right
to appeal any sentence within or below the guidelines range, based on agreed-upon conduct
listed in the plea agreement. See Order, No. 13-6393, at *2 (6th Cir. July 29, 2014). At
sentencing, however, the district court’s guidelines calculation included an enhancement based
on conduct that was not listed in the plea agreement. See id. Whitelow appealed and we denied
the government’s ensuing motion to dismiss Whitelow’s appeal, finding that the enhancement
increased his sentence beyond the top of the guidelines range supported by the agreed-upon
conduct listed in the plea agreement. Id. In other words, the district court’s consideration of
conduct outside the plea agreement triggered an exception to the appellate waiver in Whitelow’s
plea agreement. Id.
No. 20-3330 United States v. Hollins-Johnson Page 4
Unlike Whitelow, Hollins-Johnson cannot argue that the district court’s sentencing
decision triggered an exception to her appellate waiver. Her term is below the statutory
maximum and, thus, the waiver remains intact. Accordingly, Whitelow is inapposite.
Lastly, Hollins-Johnson suggests that the government forfeited its dismissal argument by
failing to raise it until after she filed her principal brief. An appellate waiver does not implicate
“our statutory jurisdiction” and is instead a “mere claim-processing rule.” United States v. Hack,
999 F.3d 980, 983–84 (6th Cir. 2021) (quotation omitted). Although “[w]e strongly encourage
the government to promptly file a motion to dismiss the defendant’s appeal where the defendant
waived h[er] appellate rights as part of a plea agreement,” United States v. McGilvery, 403 F.3d
361, 363 (6th Cir. 2005), we have also found that it “is appropriate for the government to delay
the filing of a motion to dismiss until it is known what arguments will be raised by a defendant
on appeal,” United States v. Henderson, No. 09-6261, 2010 WL 4451245, at *1 (6th Cir. Sept.
28, 2010). Here, the government filed its motion roughly one month after Hollins-Johnson filed
her appellate brief and, in the meantime, responded to her earlier motion to stay the imposition of
her sentence. That the government waited until it knew “what arguments” Hollins-Johnson
raised in her appeal does not mean that it forfeited its appellate waiver argument. See id.
The motion to dismiss is GRANTED.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk