*

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 _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SCOTTIE R. MAGOUIRK,

Defendant-Appellant.

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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, Circuit Judges; GWIN, District Judge.*

_________________

COUNSEL

ARGUED: Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur, Georgia, for

Appellant. Christopher D. Poole, ASSISTANT UNITED STATES ATTORNEY, Chattanooga,

Tennessee, for Appellee. ON BRIEF: Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN,

Decatur, Georgia, for Appellant. Christopher 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.

1
No. 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 counts against him. Count One charged Magouirk

with conspiracy to knowingly manufacture methamphetamine 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 Keel and Whited, during a joint rearraignment hearing

held in February of 2005. A probation officer then prepared 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 resolution 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 Court in its application of the Sentencing

Guidelines or in the facts it may consider 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 state that the sentence will be determined

within the discretion of the Court as restrained by law, and, basically, sets out that

the guidelines will be considered although they 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 what’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 sixth residual ground representing a “combination” of

the other five. The five specific 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 physical abuse during childhood, and (5) he was held
No. 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 hearing, his counsel yet again confirmed Magouirk’s

desire to be sentenced according to the Guidelines, 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 words, 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 convened 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 [downward 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 put 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 response 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 range of 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 afternoon?” 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 procedurally 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 waiver of 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 expressly 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 his 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 binding 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). The 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 in accordance 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 directly
No. 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 consideration 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 question in the affirmative. For a given right to be

nonwaivable means that the right is so sacred and absolute 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 process that they may never be waived without 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 nonwaivability 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 rights of criminal defendants,” Peretz v. United States, 501 U.S. 923, 936

(1991), including “many of the most fundamental 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, crucially, 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

Bradley is 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 his 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), the 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 situation 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 from 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 in fact 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 his 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 effectuates 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 agreements entered into after Booker was decided. In Amiker, the court

reflected on the pre-Booker state of affairs regarding plea bargaining to make the point that a request

to have one’s sentence governed by the Guidelines was in fact totally unexceptional. 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 implicitly, 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 noted: “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 is
No. 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 sentence on the ground of waiver would risk

creating bad policy because “[t]he government, in pursuing 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 policy” 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, belie Magouirk’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 sentence 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 advisory Guidelines range, if not above

it. A properly informed defendant in such a case 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. This 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 district court sentenced Magouirk to 151 months in

prison, the lowest possible sentence that he could have received under the Guidelines absent a

downward departure. His sentence, moreover, was 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 defendants an 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, 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). 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 district court should have considered the Guidelines

as advisory only, and because his sentence at the very bottom of the applicable Guidelines range was
No. 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.