United States v. Toyale Southern ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0839n.06
No. 09-1293 FILED
UNITED STATES COURT OF APPEALS Dec 15, 2011
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
TOYALE CORNELL SOUTHERN, )
)
Defendant-Appellant. )
)
BEFORE: MOORE and GRIFFIN, Circuit Judges; and QUIST, District Judge.*
GRIFFIN, Circuit Judge.
The government moves to dismiss this appeal on the ground that defendant waived his right
to appeal his conviction and sentence. We hereby grant the motion and dismiss this appeal.
I.
On April 30, 2008, defendant-appellant Toyale Cornell Southern was indicted on one count
of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pursuant to a
written plea agreement, Southern pleaded guilty to this charge on September 26, 2008. Soon
thereafter, a presentence investigation report (“PSR”) was compiled, recommending a Guidelines
range of 51 to 63 months’ imprisonment. The PSR observed that U.S.S.G. § 5G1.3(c), Application
*
The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 09-1293
United States v. Southern
Note (3)(c) recommended that the sentence run consecutively to Southern’s state-court sentences for
probation violation.
At the sentencing hearing, both Southern and the government requested a concurrent
sentence.1 Nevertheless, because of the violent nature of Southern’s offense and his extensive
criminal history, the district court imposed a sentence of 63 months, to be served consecutively to
his undischarged state-court sentences. Southern thereafter filed this timely appeal.
II.
Southern asserts that his sentence is both procedurally and substantively unreasonable.
Pursuant to the plea agreement, however, Southern expressly waived “any right [he] ha[d] to appeal
[his] conviction or sentence” if the sentence imposed was within the agreed-upon Guidelines range.2
This waiver, if knowing and voluntary, is enforceable, thereby precluding our consideration of
Southern’s appeal. United States v. Webb, 403 F.3d 373, 378-79 (6th Cir. 2005); United States v.
McGilvery, 403 F.3d 361, 362-63 (6th Cir. 2005).
In challenging his appellate waiver, Southern does not assert that his guilty plea was
unknowing, unintelligent, or involuntary. Rather, he asserts that he did not specifically waive the
right to challenge “the manner in which the sentence was imposed.” However, the plea agreement
unambiguously waives “any right” he had to appeal his sentence. While an appellate waiver will not
foreclose a challenge to a sentence exceeding the statutory maximum, United States v. Caruthers,
1
The government agreed to make such a request in Southern’s plea agreement.
2
The parties agreed that Southern’s Guidelines range was 51 to 63 months’ imprisonment.
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No. 09-1293
United States v. Southern
458 F.3d 459, 471-72 (6th Cir. 2006), Southern makes no such claim here. Accordingly, the waiver
plainly applies to Southern’s claims on appeal.
Southern also cites to several cases in which appellate waivers were not enforceable because
of the district court’s failure to comply with Federal Rule of Criminal Procedure 11(b)(1)(N). See,
e.g., United States v. Padilla-Colón, 578 F.3d 23 (1st Cir. 2009); United States v. Whavers, 166 F.
App’x 112 (5th Cir. 2006); United States v. Murdock, 398 F.3d 491 (6th Cir. 2005). This rule
provides that in accepting a guilty plea, the district court must “inform the defendant of, and
determine that the defendant understands . . . the terms of any plea-agreement provision waiving the
right to appeal or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N). In this case,
there can be no dispute that the district court complied with Rule 11. Indeed, the district court read
the entirety of the appellate waiver to Southern during his change-of-plea hearing and Southern
asserted that he had no questions regarding the provision. Thus, there is simply no basis upon which
to hold that Southern’s appellate waiver is inapplicable or unenforceable.
III.
We hold that Southern has waived his right to appeal his sentence and conviction.
Accordingly, the government’s motion is granted and this appeal is dismissed.
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