* The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 06a0429p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U NITED S TATES OF A MERICA , Plaintiff-Appellee,

v.

S COTTIE R. M AGOUIRK , Defendant-Appellant. X - - - -
> , - - N No. 05-5960

Appeal from the United States District Court for the Eastern District of Tennessee at Winchester. No. 04-00021—R. Allan Edgar, District Judge. Argued: November 1, 2006
Decided and Filed: November 20, 2006
Before: GILMAN and GRIFFIN, Circ uit Judges; GWIN, District Judge. *

_________________ COUNSEL

ARGUED: Marcia G. Shein, LAW OFFICE OF MA RCIA G. SHEIN, Decatur, Georgia, for Appellant. Christopher D. Poole, ASSIST ANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. ON BRIEF: Marcia G. Shein, LAW O FFICE OF MARCIA G. SHEIN, Decatur, Georgia, for Appellant. Christ opher D. Poole, ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.

_________________ OPINION

_________________ RONALD LEE GILMAN, Circuit Judge. A federal grand jury indicted George Bryant, Crystal Keel, Scottie Magouirk, and Richard Whited on ten counts relating to the manufacture and use of methamphetamine. Following a jury trial in Bryant’s case and guilty pleas in the cases of Keel, Magouirk, and Whited, the district court imposed sentences of 100, 188, 151, and 151 months in prison, respectively. Magouirk explicitly agreed in both his plea agreement and plea colloquy to have his sentence governed solely by the U.S. Sentencing Guidelines notwithstanding Booker

. Despite this agreement, he now claims that his sentence was unreasonable because the district court failed to adequately consider the sentencing factors enumerated in 18 U.S.C. § 3553(a). For the reasons set forth below, we AFFIRM the 151-month sentence imposed by the district court.

1No. 05-5960 United States v. Magouirk Page 2

I. BACKGROUND A. Procedural background The grand jury charged Magouirk in three counts of the ten-count indictment that also named Bryant, Keel, and Whited as codefendants. Magouirk pled guilty to Count One in exchange for the government’s dismissal of the remaining two c ounts against him. Count One charged Magouirk with conspiracy to knowingly manufacture meth amphetamine between January of 2001 and April 22, 2004, in violation of 21 U.S.C. §§ 841(a)(1), 841( b)(1)(C), and 846. The district court accepted Magouirk’s guilty plea, as well as those of Keeland Whited, during a joint rearraignment hearing held in February of 2005. A probation officer thenprepared a Presentence Report (PSR) in which she calculated Magouirk’s Guidelines range to be between 151 and 188 months of imprisonment. In June of 2005, the district court chose the low end of the recommended range, sentencing Magouirk to 151 months in prison. This timely appeal followed. B. Factual background Because Magouirk’s argument on appeal relates to only the procedural, as opposed to the substantive, aspects of his sentence, the details of his involvement in the methamphetamine conspiracy are not at issue. Instead, the resolu tion of this case turns on the plea agreement between Magouirk and the government. The key language in the plea agreement is found in paragraph 6, which reads as follows: 6. Pursuant to Rule 11(c)(1)(C), the parties expressly agree that [the] appropriate sentence in this case will be determined by application of the United States Sentencing Guidelines. The parties agree that the sentencing court may consider any reliable evidence, including hearsay, in determining the guideline sentence and that the preponderance of the evidence standard will be applied. The defendant agrees to waive any challenge to the validity of the Sentencing Guidelines. The defendant acknowledges that he understands that nothing contained in the plea agreement or any factual basis limits the C ourt in its application of the Sentencing Guidelines or in the facts it may consid er in establishing a Sentencing Guidelines range or an appropriate sentence and that any sentence imposed under the Sentencing Guidelines is nonparolable. Of lesser importance is paragraph 11 of the plea agreement, which generally waives Magouirk’s right to appeal his conviction . Magouirk did not, however, waive the right to appeal his sentence

. At the February 2005 joint rearraignment hearing, the district court asked the government to summarize the terms of each defendant’s plea agreement. The government responded by distinguishing Magouirk’s agreement from the agreements of both Keel and Whited as follows: Mr. Whited and Ms. Keel’s agreements st ate that the senten ce will be determined within the discretion of the Court as restrained by law, and, basically, sets out that the guidelines will be considered although th ey are not mandatory, as well as other factors of 18 U.S.C. Section 3553 will be considered. Mr. Magouirk’s is a little different in that he is agreeing and we are agreeing with him subject to the Court’s approval that he be sentenced under the guidelines. That’s the only difference. He requests that the guidelines will determine his sentence. Shortly thereafter, the district court, seeking clarification, engaged Magouirk individually as follows:No. 05-5960 United States v. Magouirk Page 3

THE COURT: Now, Mr. Magouirk, you understand that your plea agreement, and I’ll talk about this a little bit more later, but do you understand that you are agreeing, as I understand it, that your sentence will be governed by the Federal Sentencing Guidelines?
MAGOUIRK: Yes, sir. THE COURT: Is that correct, you’ve discussed that?
COUNSEL: Yes, Your Honor. We have had several conversations. The Booker decision obviously involves discretionary sentencing versus guideline sentencing, and — THE COURT: Okay. COUNSEL: —that was Mr. Magouirk’s decision. THE COURT: Okay. That’s fine. And we’ll talk, as I said, we’ll talk a little more about the guidelines in just a moment here.

. . . THE COURT: [H]ave you discussed the Federal Sentencing Guidelines and your possible sentences with your respective attorneys?

. . . MAGOUIRK: Yes, sir.

. . . THE COURT: Okay. Let me tell you wh at’s going to happen from here on out in this case with respect to each of you. . . . With respect to Ms. Keel and Mr. Whited, I will consider those guidelines when I set your sentence, but I won’t necessarily be bound by them. I could consider other factors as well. But at any rate, the sentence, the guidelines will be something that I will look at. With respect to Mr. Magouirk, the guidelines will be, the sentence will be somewhere within those guidelines however they’re determined. Do you understand that?
MAGOUIRK: Yes, Sir. In June of 2005, Magouirk filed a motion for a Guidelines-authorized downward departure based on five separate grounds, as well as a si xth residual ground representing a “combination” of the other five. The five specifi c grounds alleged by Magouirk were that (1) his participation in the conspiracy was minimal, (2) the amount of drugs involved accumulated over a long period of time, (3) his conduct was less serious than the typical conduct covered by “the heartland of the guidelines,” (4) he suffered both mental and phys ical abuse during childhood, and (5) he was heldNo. 05-5960 United States v. Magouirk Page 4

in solitary confinement for approximately four and a half months. In a separate sealed motion filed that same month, Magouirk asserted a final ground for the departure—namely, that he had cooperated with and rendered assistance to the government on multiple occasions and with regard to multiple other crimes. At Magouirk’s subsequent sentencing heari ng, his counsel yet again confirmed Magouirk’s desire to be sentenced according to the Guidelin es, engaging in the following preliminary exchange with the district court: THE COURT: Well, I mean—yeah. I mean, as far as sentencing is concerned. But, in other wo rds, you want a sentence outside of the guidelines [by way of a departure or variance]? COUNSEL: I think he’s entitled to that, yes, sir. THE COURT: Yeah. And even though in your plea agreement you wanted him to be sentenced in the guidelines? COUNSEL: May it please the Court, the agreement is that to the sentencing guidelines. The sentencing guidelines law also provides, however, for a 5K1 motion which Your Honor can sustain and set a lower guideline

. (Emphasis added.) Both Magouirk’s counsel and the government argued at length their respective positions on Magouirk’s downward-departure motion later in the hearing. After listening to argument on the first six grounds raised by Magouirk, the district court c onvened a sidebar to discuss separately the issue of Magouirk’s cooperation with the government. When the court noted during the sidebar that “I don’t grant 5Ks if that’s what we’re talking about here under Booker , unless the government makes them,” Magouirk reminded the court of its discretion to award a downward departure where the government’s failure to move for one is the result of bad faith. The district court specifically considered this exception, but concluded that it did not apply: Okay. I’m not going to grant a 5K [downw ard departure] in the case because I don’t, from everything that I’ve heard here, I don’ t think that the government is acting in bad faith. And I don’t think that—let’s pu t it this way—whether there is or not, I think that there is a basis for the government to believe that he has not rendered substantial assistance. I mean, he’s rendered some assistance, but he hasn’t rendered substantial assistance. After allowing Magouirk one final opportunity to advocate his position regarding cooperation and after hearing the government’s res ponse that “[t]here are problems with [Magouirk] as a witness,” the court reiterated its view that “this is not a close case.” The district court then stated in open court its position as to each of the other five grounds enumerated by Magouirk, concluding that none (nor the combination of all five) sufficed to warrant a downward departure from the Guidelines rangeof 151 to 188 months’ imprisonment as proposed in the PSR. Having denied Magouirk’s motion on all grounds, the district court sentenced Magouirk to 151 months in prison. The court finally asked, as “I have to,” whether “there are any objections to the sentence that’s just been pronounced here or the presentence report or anything else that this Court has not already dealt with here this af ternoon?” Magouirk’s counsel responded: “No, Your Honor.”No. 05-5960 United States v. Magouirk Page 5

II. ANALYSIS

A. Standard of review

Post- Booker , we will not overturn a sentence imposed by a district court unless that sentence is unreasonable. United States v. Richardson , 437 F.3d 550, 553 (6th Cir. 2006). Reasonableness review has “both substantive and procedural components.” United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006). A sentence will be deemed pro cedurally unreasonable if “the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005) (footnote omitted); see also United States v. McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006) (noting that “[a] district court’s failure to explicitly consider the section 3553(a) factors without other evidence in the record demonstrating that they were thoroughly considered . . . would result in a procedurally unreasonable” sentence).

B. Discussion
Under normal circumstances, a district court judge who treats the Guidelines as mandatory in imposing a sentence in this post- Booker world necessarily commits plain error. United States v. Oliver , 397 F.3d 369, 379-81 (6th Cir. 2005) (“Here, at the time of sentencing it was uncontested that mandatory federal guideline sentencing enhancements based on judge-found fact presented no Sixth Amendment concerns; however, by the time of appellate consideration, the law changed, and it is now evident that the district court’s sentencing determination was in clear violation of Booker .”). Equally clear, however, is that a defendant may waive the right to appeal his sentence, typically but not necessarily subject to certain limitations. See, e.g.
, United States v. Bradley , 400 F.3d 459, 464 (6th Cir. 2005) (upholding as valid the defendant’s waiverof the right to appeal his sentence directly or collaterally, save for claims of ineffective assistance of counsel or prosecutorial misconduct). Waiver may be implied even if not e xpressly stated, as long as the right being waived is actually known to the defendant. Carter v. Sowders , 5 F.3d 975, 981 (6th Cir. 1993) (concluding that, because Carter was not sufficiently aware of hi s right to confront a particular witness against him, Carter did not impliedly waive that right). Analyzing waiver and related issues is, at bottom, a fact-specific and right-specific inquiry: Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.

United States v. Olano , 507 U.S. 725, 733 (1993). The record in the present case, as reproduced in pertinent part above, leaves little doubt that Magouirk, through his plea agreement and plea colloquy, in fact waived his Booker right to the advisory application of the Guidelines, instead bi nding himself to be sentenced solely according to the Guidelines. This waiver, moreover, was made voluntarily; that is, “knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely consequences.” See United States v. Ruiz , 536 U.S. 622, 629 (2002) (brackets omitted). Th e colloquy between the district court and Magouirk, reproduced above, establishes the relevant facts. In short, the government is correct in arguing that “the record conclusively shows that defendant intentionally and knowingly negotiated in his plea agreement for a binding provision that limited his sentence inaccordance with the Guidelines range and any Chapter 5 departures.” Our analysis, however, does not end simply because we adopt this conclusion. Determining that Magouirk waived the advisory application of the Guidelines, in other words, does not directlyNo. 05-5960 United States v. Magouirk Page 6

resolve Magouirk’s principal argument on appeal, which we understand to be that the advisory application of the Guidelines, and the related c onsideration of the 18 U.S.C. § 3553(a) statutory factors, is per se nonwaivable after Booker . Magouirk confirms this understanding in his reply brief, where he states that “Appellant[] is asking this Honorable Court to determine [] whether a plea agreement binding the district court to the guidelines is available post- Booker .” Because the right to be sentenced under an advisory application of the Guidelines is best construed as a waivable right, we answer this ques tion in the affirmative. For a given right to be nonwaivable means that the right is so sacred and ab solute that its waiver, as a matter of law, simply cannot be made voluntarily. “There may be some nonwaivable rights: ones so fundamental to the reliability of the factfinding proce ss that they may never be waivedwithout irreparably discrediting the federal courts.” Halbert v. Michigan , 125 S. Ct. 2582, 2602 (2005) (Thomas, J., dissenting) (quoting United States v. Mezzanatto , 513 U.S. 196, 204 (1995)) (quotation marks omitted).

But an assertion of nonwaivab ility carries a heavy burden for the simple reason that our analysis starts “against a background presumption that legal rights generally . . . are subject to waiver by voluntary agreement of the parties.” Mezzanatto , 513 U.S. at 203. Among these legal rights are “[t]he most basic ri ghts of criminal defendants,” Peretz v. United States , 501 U.S. 923, 936 (1991), including “many of the most fundament al protections afforded by the Constitution.” Mezzanatto , 513 U.S. at 201 (citing, among other things, the double jeopardy defense, the right to a jury trial, the right to confront one’s accusers , and the right to counsel ). The presumption of waivability applies equally to statutory rights. Id. (“Likewise, absent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties.”). This court has addressed a similar—though, cruc ially, not identical—issue in several cases decided in the wake of Booker . Principally, in United States v. Bradley , 400 F.3d 459 (6th Cir. 2005), the court held that Bradley had waived his right to appeal his sentence except on certain inapplicable grounds because Bradley’s plea agreement (1) had specified such a waiver, and (2) had explicitly acknowledged that the Guidelines would govern Bradley’s sentence. Id. at 461. The court also implied that either of these two provisions was sufficient to create a waiver of Bradley’s right to appeal his sentence. Id. at 465 (“reaching this conclusion both with respect to Bradley’s agreement that he would be sentenced under the Guidelines and his waiver of the right to appeal”). Two of the cases cited by Magouirk have since clarified the scope of Bradley ’s holding. First, in United States v. Amiker , 414 F.3d 606, 607 (6th Cir. 2005), the court explicitly declined to recognize as “an alternative holding in Bradley ” the suggestion “that a defendant, by explicitly agreeing to be sentenced under the Guidelines, waives any right to Booker-resentencing.” The Amiker court instead relegated this suggestion to dicta, explaining that “we think this language in Bradleyis best interpreted as merely additional rationale serving only to buttress the court’s decision that the defendant had waived his right to appeal.” Id. ; see also United States v. Turner , 173 F. App’x 402, 406 (6th Cir. 2006) (unpublished) (citing Amiker in reiterating that “[t]he Bradley court’s opinion regarding the sufficiency of an agreement that the Guidelines would govern sentencing is dicta . . . .”). Amiker, who had not waived hi s right to appeal his sentence in his plea agreement, was accordingly entitled to resentencing in light of Booker

. Amiker , 414 F.3d at 607. The Amiker opinion thus stands for the proposition that “where a plea agreement does not include an appeal waiver, an explicit agreement to be sentenced under the Guidelines carries no independent significance.” Id. at 608.

In United States v. Puckett , 422 F.3d 340, 343 (6th Cir. 2005), th e other relevant case cited by Magouirk, the court confirmed the Amiker court’s understanding of Bradley :No. 05-5960 United States v. Magouirk Page 7

As in Amiker , Puckett did not expressly waive his right to appeal in the plea agreement, and thus the current s ituation falls outside the reach of Bradley . The mere fact that Puckett agreed to be, and was, sentenced pursuant to the Sentencing Guidelines, does not preclude him fr om raising on appeal an alleged Booker error regarding his sentence.

Id. (citations omitted).

As in both Amiker and Puckett , Magouirk did not expressly waive his right to appeal his sentence in his plea agreement. The government infact clarified for the district court at the rearraignment hearing that “[o]f course, [the defendants] can appeal their sentences. There is nothing in there about that, Judge.” Bradley , accordingly, does not apply. Nor, however, does Amiker or Puckett . Because Magouirk entered into hi s plea agreement in February of 2005—after the Supreme Court had already decided Booker —neither Amiker nor Puckett is directly on point. For the same reason, we find nothing on point in the numerous other published and unpublished opinions from this circuit where the plea agreement was accepted by the district court before Booker was decided. See, e.g.
, Hochschild v. United States , 442 F.3d 974, 979-81 (6th Cir. 2006) (remanding for resentencing where the pre- Booker waiver “cannot be read to cover statutory rights which flowed from Booker ’s remedial holding”). Magouirk’s case thus presents an issue of first impression in this circuit.
The issue, in other words, is whether a defendant who, through a valid plea agreement entered into after the Supreme Court’s January 12, 2005 decision in Booker , stipulates that the Guidelines will govern his sentence despite Booker , but who does not explicitly waive his general right to appeal his sentence, nonetheless effectuate s a waiver of his specific right to appeal his sentence on the grounds of a Booker violation. (Magouirk’s right to appeal his sentence on any nonBooker grounds is not being challenged.) As an initial matter, none of our sister circuits appear to have addressed, much less resolved, this issue. We therefore look principally to the reasoning underlying this court’s relevant caselaw in setting forth our analysis. The implicit justifications for the holdings in Amiker and Puckett simply do not apply to plea ag reements entered into after Booker was decided. In Amiker , the court reflected on the pre- Booker state of affairs regarding plea bargai ning to make the point that a request to have one’s sentence governed by th e Guidelines was in fact totally un exceptional. Amiker , 414 F.3d at 607 (“At the time of Amiker’s plea agreement and sentencing [i.e., pre- Booker], all plea agreements required, either explicitly or implicitl y, that a defendant agree to sentencing under the Guidelines.”). Now, of course, Booker is established law, and the district courts are required to treat the Guidelines as advisory only. A defendant like Magouirk who nonetheless prefers to be sentenced under the old mandatory scheme will therefore be requesting an exception to the rule. Whether this exception can and should be granted is precisely the issue that we now have to decide.

In Amiker
, Puckett , and the host of similar decisions referenced above, the court either stated or implied that the error regarding the defendant’s sentence was based on the district court’s assumption that the Guidelines were mandatory. See, e.g.
, Hochschild , 442 F.3d at 979 (“The district court erred by sentencing Hochschild under the erroneous assumption that the sentencing guidelines were mandatory.”). Here, to the contrary, the district court was not only fully aware of the post- Booker advisory status of the Guidelines, but made sure that Magouirk was aware of that status as well. The portions of the plea colloquy reproduced above leave no doubt about this conclusion. As Magouirk’s counsel specifically not ed: “Yes, Your Honor. We have had several conversations. The Booker decision obviously involves discretionary sentencing versus guideline sentencing, and . . . that was Mr. Magouirk’s decision [to have his sentence governed by the Guidelines].” That Magouirk’s counsel made this statement, as opposed to Magouirk himself, is of little consequence. See Bradshaw v. Stumpf , 545 U.S. 175, 183 (2005) (“Where a defendant isNo. 05-5960 United States v. Magouirk Page 8

represented by competent counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.”). Magouirk further argues that upholding his se ntence on the ground of waiver would risk creating bad policy because “[t]he government, inpursuing Rule 11(c)(1)(C) plea agreements, will be permitted to circumvent the Booker change in the law by creating mandatory guidelines where they no longer exist and render 18 U.S.C. § 3553 meaningless.” At oral argument, moreover, Magouirk’s counsel conceded that this “public po licy” argument constitutes the core of the appeal, contending that affirmance in the present case would effectively function as a “tool of the government” to recreate a “mandatory Guidelines system using a back door” that would “circumvent the Booker change in the law.” The facts of this very case, however, belieMagouirk’s argument. As the government suggests in its brief, defendants may well have strategic reasons for doing in the future precisely what Magouirk did here. At a very basic level, the Guidelines afford defendants a degree of predictability that the Booker discretionary scheme by definition cannot. A district court, moreover, will not necessarily impose a more lenient senten ce simply because the Guidelines are no longer mandatory, as the recent fallout in the case of Booker’s coappellant Duncan Fanfan makes painfully obvious. See United States v. Fanfan , — F.3d —, 2006 WL 3217712 (1st Cir. Nov. 8, 2006) (affirming Fanfan’s post- Booker sentence of 210 months in prison, even though his pre- Booker sentence was only 78 months); see also United States v. Elliott , — F.3d —, —, 2006 WL 3093641, at *4 (7th Cir. Nov. 2, 2006) (“ More discretion [in light of Booker] can produce higher sentences as well as lower ones.”).

The consideration of all of the factors set forth in 18 U.S.C. § 3553(a) might well lead a district court to sentence a defendant to the high end of the adviso ry Guidelines range, if not above it. A properly informed defendant in such a cas e might therefore help his cause by requesting that his sentence be governed solely by the Guidelines , including the possibility that the government will file a § 5K1.1 motion for a downward departure. Th is would make a sentence at the high end of the Guidelines range the worst-case scenario for most defendants, while retaining the chance for a below-the-range sentence. Magouirk followed this path in the present case and, notwithstanding the district court’s refusal to depart downward, it worked. The distri ct court sentenced Magouirk to 151 months in prison, the lowest possible sentence that he coul d have received under the Guidelines absent a downward departure. His sentence, moreover, wa s equivalent in length to Whited’s and 37 months shorter than Keel’s, even though both of those sentences, unlike Magouirk’s, resulted from the district court’s advisory application of the Guidelines. Magouirk, in other words, did himself no harm by effectively opting out of Booker ; if anything, he saved himself significant additional time in jail. In any event, it was Magouirk, not the government, who was “permitted to circumvent the Booker change in the law.” Magouirk’s “tool” argument thus has it backwards: Allowing the waiver of Booker rights will give defendantsan additional “tool,” providing them with another plea option that they will now be able to pursue with the government.

We therefore hold that a defendant may voluntarily waive his or her Booker rights, provided that the waiver is made “knowingly, intelligentl y, and with sufficient awareness of the relevant circumstances and likely consequences.” See United States v. Ruiz , 536 U.S. 622, 629 (2002) (brackets omitted). The proper focus remains on the terms of the plea agreement and the words exchanged during the plea colloquy. Because Magouirk effectively and voluntarily waived his right to appeal his sentence on the ground that the distri ct court should have considered the Guidelines as advisory only, and because his sentence at the very bottom of the applicable Guidelines range wasNo. 05-5960 United States v. Magouirk Page 9

not otherwise unreasonable, we uphold the district court’s decision to sentence Magouirk to 151 months in prison.

III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.