NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0196n.06
                            Filed: April 16, 2008

                                            No. 06-3594

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                                      )
                                                               )
       Plaintiff-Appellee,                                     )       On Appeal from the United
                                                               )       States District Court for the
v.                                                             )       Northern District of Ohio
                                                               )
DANIEL McKINNEY,                                               )
                                                               )
       Defendant-Appellant.                                    )



Before:        MARTIN and ROGERS, Circuit Judges; and HOOD, District Judge.*

       HOOD, DENISE PAGE, District Judge. Appellant Daniel McKinney (“McKinney”)

appeals the Judgment and Sentence imposed by the district court after McKinney’s plea of guilty

pursuant to a plea agreement under Fed. R. Civ. P. 11. For the reasons set forth below, the district

court’s judgment is AFFIRMED.

                                        I. BACKGROUND

       On November 16, 2005, McKinney was charged in a two-count indictment with possession

with intent to distribute in excess of 50 grams of cocaine base (crack), in violation of 21 U.S.C. Sec.

841(a)(1) and felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). (J.A. 7-8)



* The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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McKinney entered a plea of guilty on March 14, 2006 pursuant to a Rule 11 written plea agreement

with the government. (J.A. 20-29)

       The Rule 11 written agreement states that a pre-plea presentence report was prepared

indicating that McKinney was a career offender with an automatic criminal history category VI.

(J.A. 23-24) The calculation set forth in the Rule 11 agreement for Count 1 established a base

offense level of 32, based on the amount of crack cocaine involved of 50 to 150 grams. (J.A. 22-23)

The parties agreed that the base offense level for Count 2 was 24 and that the combined offense level

for Counts 1 and 2 was 32. (J.A. 23)

       The agreement further indicated that McKinney was subject to enhanced penalties under

U.S.S.G. Section 4B1.1 as a career offender because the indictment involved a controlled substance

offense and McKinney had two prior felony convictions for a crime of violence or controlled

substance offense. (J.A. 23) The resulting base offense level was 37 because the maximum statutory

penalty for Count 1 is life imprisonment. (J.A. 23)

       The government agreed to seek a three level reduction for acceptance of responsibility under

U.S.S.G. 3E1.1(a) and three levels for substantial assistance to the government under 18 U.S.C. §

3553(e) and U.S.S.G. 5K1.1. (J.A. 23, 26) McKinney agreed that he would not request a further

reduction of the total adjusted offense level at the time of sentencing. (J.A. 26) McKinney expressly

waived his right to appeal under 18 U.S.C. § 3742 or to challenge his sentence under 28 U.S.C. §

2255 unless the sentence imposed by the judge was in excess of the statutory maximum or the

sentencing range under the advisory Sentencing Guidelines. (J.A. 24) McKinney did not waive the
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right to appeal or to collaterally attack any claims of ineffective assistance of counsel or prosecutorial

misconduct. (J.A. 25)

        At the sentencing hearing, the district judge grouped together the calculation of Counts 1 and

2, finding that the controlled substances charge in Count 1 was a base offense level 32. Two levels

were then added for Count 2 possession of a firearm during the offense charge, for an adjusted

offense level of 34. (J.A. 35) The district judge went on to find that McKinney was a career

offender, having been convicted of two felony convictions of a crime of violence and a controlled

substance offense, resulting in an offense level of 37. (J.A. 35-36) The district judge reduced the

offense level by three levels for acceptance of responsibility under U.S.S.G. 3E1.1(a) and three levels

for substantial assistance to the government under 18 U.S.C. § 3553(e) and U.S.S.G. 5K1.1, resulting

in a total offense level of 31. (J.A. 36-37) The district judge determined McKinney’s criminal

history category was VI because of McKinney’s career offender status. (J.A. 37) A total offense

level of 31 and a criminal history category of VI resulted in the sentencing guideline range of 188

to 235 months. (J.A. 37)

        Although acknowledging that under the plea agreement McKinney waived his right to request

an adjustment as to the criminal history calculation based on McKinney’s career offender status,

defense counsel argued that the criminal history over-represented the seriousness of McKinney’s past

criminal conduct under the guidelines, given that McKinney only received probation on the charges.

(J.A. 40-46) The district judge found that because McKinney agreed to the career offender status,

McKinney has waived his right to ask for a departure. (J.A. 46) The district judge found that the
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calculation was in the heartland of the types of calculations the guideline writers intended when they

developed the career offender calculation. (J.A. 46) The district judge went on to review the factors

set forth in 18 U.S.C. § 3553 before imposing the sentence of 190 months of imprisonment for Count

1 and 10 years on Count 2 to run concurrent with the sentence imposed on Count 1, followed by five

years of supervised release and $200 special assessment. (J.A. 49-52, 55) McKinney timely filed

an appeal of the Judgment and sentence imposed by the district judge.

                                          II. ANALYSIS

       Although argued at the end of its brief, the government claims that McKinney waived his

right to appeal his sentence under the plea agreement and is barred from challenging the district

court’s sentence. McKinney made no arguments addressing the issue of whether he had waived

appellate review of his sentence.

       So long as the waiver is knowing and voluntary, a defendant in a criminal case can waive his

right to appeal. United States v. Fleming, 

, 763-64 (6th Cir. 2001); United States v.

Ashe, 

, 775-76 (6th Cir. 1995). An agreement to waive a right to appeal or otherwise

challenge the constitutionality or legality of a sentence imposed is binding on a defendant. United

States v. Bazzi, 

, 1028 (6th Cir. 1996); United States v. Allison, 

, 46 (6th Cir.

1995). An attempt to void the plea agreement by appealing an issue that a defendant stipulated to

and agreed not to contest is in violation of the law in this circuit, unless the statutory maximum

sentence has been exceeded. 

; United States v. Caruthers, 

, 471

(6th Cir. 2006).
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       On appeal, McKinney does not argue that his appeal waiver was unenforceable nor does he

argue that his plea was not voluntary or knowingly made, but instead raises two arguments. The first

argument is that the 190-month sentence on Count 1 is unreasonable because: the 100:1 ratio

between penalties for crack cocaine compared to penalties for powder cocaine is too great; the

guidelines deviate from public opinion; and, the sentence is far greater than necessary to comply with

the purposes of 18 U.S.C. § 3553(a)(2). The second argument is that the trial court erred in

calculating McKinney’s criminal history and labeling McKinney as a career offender.

       At the sentencing hearing, defense counsel acknowledged that McKinney waived his right

to appeal except for ineffective assistance of counsel or prosecutorial misconduct claims. (J.A. 54)

The only objection raised by McKinney during the sentencing hearing was to paragraph 34 of the

presentence report noting that the wrong case number was designated as the basis for the career

offender status. (J.A. 32-33) Defense counsel did not argue that the presentence report contained

the wrong case number and that the cases used to support the career offender status, including the

amended case number, were wrong. Defense counsel merely argued that McKinney’s criminal

history category over-represented the seriousness of his criminal history. (J.A. 33) The district judge

amended the pretrial report to show that case no. 426456 from Cuyahoga County Common Pleas was

not the case supporting the career offender status, but that case no. 410441 should instead be

considered in determining whether McKinney qualified as a career offender. (J.A. 34)

       The plea agreement between the parties did not specifically assign McKinney to a particular

criminal history category, and noted that the court at sentencing would determine McKinney’s
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criminal history category. (J.A. 23) However, the parties acknowledged that McKinney was subject

to enhanced penalties as a career offender and that the pre-plea presentence report indicated

McKinney was a career offender, automatically placing McKinney in criminal history category VI.

(J.A. 23-24) McKinney expressly agreed to waive his right to appeal the conviction or sentence,

except that he reserved the right to appeal any sentence exceeding the statutory maximum and the

sentencing range determined under the advisory Sentencing guidelines, using the criminal history

category found applicable by the court. (J.A. 24) McKinney also reserved the right to appeal “the

criminal history calculation as determined by the Court, for those objections timely raised.” (J.A.

24-25)

         McKinney’s counsel did not argue at the sentencing hearing that the calculation of the

criminal history was improper. McKinney’s counsel requested that the court “fashion a reasonable

sentence, to consider the possible over representation of the criminal history, and fashion an

appropriate sentence.” (J.A. 42) The district judge indicated that McKinney’s argument was that

the career offender designation over-calculated the criminal history, after which defense counsel

stated, “[t]he seriousness of it. He got probation on those cases.” (J.A. 43) The district judge

interpreted defense counsel’s comments as a motion for a departure under the guideline, which the

district judge denied stating that McKinney stipulated to the fact that he was a career offender. (J.A.

45) McKinney’s counsel then stated that, “obviously the sentence is within the discretion of the

court. We have an agreement, ultimately it’s up to the court to impose a reasonable sentence. And

these are the mitigating factors that I’m bringing to the court’s attention ...” (J.A. 45) In response,
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the district judge stated that he may have misunderstood defense counsel and that defense counsel

was not asking for a departure. (J.A. 45)

       The colloquy between defense counsel and the district judge reflects that the argument

regarding the over-representation of the seriousness of the criminal history went to the § 3553

factors, rather than an objection to the calculation of the criminal history. The Rule 11 plea

agreement, the sentencing hearing transcript, and the totality of the circumstances indicate that

McKinney made a knowing, voluntary and intelligent waiver of his right to appeal his sentence.

McKinney acknowledged in the Rule 11 plea agreement that he was subject to enhanced penalties

as a career offender and that the pre-plea presentence report indicated he was at criminal history

category VI. Other than the incorrect case numbers supporting the career offender calculation and

the argument that the seriousness of the crimes were over-represented, McKinney did not object to

the calculation of the criminal history. There were no objections to the trial court’s calculation and

the sentence imposed was within and on the lower end of the guideline range. We find that

McKinney waived any appeal of the trial court’s calculation of his criminal history.

                                       III. CONCLUSION

       For the reasons set forth above, the district court’s judgment is AFFIRMED.