United States v. James Kohn

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0644n.06
No. 12-1800
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED
) Jul 10, 2013
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. )
) ON APPEAL FROM THE
JAMES ANDREW KOHN, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
Defendant-Appellant. ) DISTRICT OF MICHIGAN
)
BEFORE: SILER and COLE, Circuit Judges; DOWD, District Judge.*
PER CURIAM. James Andrew Kohn appeals through counsel the sentence imposed
following his guilty plea to a charge of sexual exploitation of a child.
On two occasions in 2010, Kohn photographed himself sexually abusing his eleven-year-old
daughter. He was prosecuted in state court for two counts of first-degree criminal sexual conduct
and was sentenced to eighteen years nine months to fifty years of imprisonment. Federal authorities
prosecuted him for the photographs, and he entered a guilty plea in 2012, pursuant to a plea
agreement. His presentence report calculated his guidelines sentencing range at 360 months to life
imprisonment, but the statutory maximum sentence for the offense is thirty years, which became the
guidelines range. The district court imposed that sentence, to run concurrently with Kohn’s state
sentence.
*
The Honorable David D. Dowd, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 12-1800
United States v. Kohn
Kohn argues on appeal that his sentence is unreasonable because the district court placed too
much emphasis on his statement of the factual basis for the plea. Kohn stated that “I took
photographs of a female under 18 years old having sex,” which the district court felt minimized the
seriousness of Kohn’s offense. Additionally, Kohn argues that the sentence is unreasonable because
he did not distribute the photographs. The government moved to dismiss the appeal because Kohn
had waived the right to appeal a sentence at or below the maximum of the guidelines range in his
plea agreement. A panel of this court denied the motion without prejudice and asked for further
briefing of the question. Kohn argues that his appeal waiver is unenforceable because the magistrate
judge did not sufficiently explain the appeal waiver during the plea hearing.
A defendant in a criminal case may waive the right to appeal, so long as the waiver is
knowing and voluntary; such a waiver precludes appellate review. United States v. Fleming, 239
F.3d 761, 763-65 (6th Cir. 2001). In Kohn’s plea agreement, he waived the right to appeal a
sentence at or below the maximum of the guidelines range, but he retained the right to appeal any
issue that the guidelines range was incorrectly determined, or a sentence greater than the statutory
maximum or based on unconstitutional factors. Kohn is not raising in this appeal any of the issues
that he retained. At the plea hearing, the magistrate judge asked Kohn if he had read the plea
agreement and gone over it with his attorney, and Kohn responded that he had. The magistrate judge
informed Kohn that the agreement required him to give up some of his appellate rights, and Kohn
responded that he understood that provision. The prosecutor, in summarizing the plea agreement,
also noted that Kohn was waiving certain of his rights to appeal.
-2-
No. 12-1800
United States v. Kohn
Kohn relies on United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005), in which an
appellate waiver provision in a plea agreement was found unenforceable. However, that case is
distinguishable, as the defendant in that case was not asked if he had read the plea agreement, and
neither the judge nor the prosecutor mentioned the appellate waiver provision during the plea
hearing. We have also upheld an appeal waiver where only the prosecutor explained the waiver
during the plea hearing. United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006). We find Kohn’s
case more similar to Wilson than Murdock. Because Kohn knowingly and voluntarily waived his
right to appeal his sentence on the grounds raised here, we grant the government’s motion to dismiss
the appeal.
Appeal dismissed.
-3-