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Pursuant to Sixth Circuit Rule 206

File Name: 09a0234p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JUMAL GEORGE JONES,

 Defendant-Appellant.

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No. 08-1352

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 07-00190-001—Gordon J. Quist, District Judge.

Submitted: April 21, 2009

Decided and Filed: July 7, 2009 

Before: BOGGS, Chief Judge; MOORE and SUTTON, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Daniel R. Fagan, DANIEL R. FAGAN & ASSOCIATES, P.C., Grand Rapids,

Michigan, for Appellant. Jennifer L. McManus, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee. 

MOORE, J., delivered the opinion of the court, in which SUTTON, J., joined.

BOGGS, C. J. (pp. 9-11), delivered a separate opinion concurring in part and dissenting in

part.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Jumal George

Jones (“Jones”) pleaded guilty to one count of possession with intent to distribute over fifty

grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and one

count of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18

U.S.C. § 924(c). He now appeals the ten-year mandatory-minimum sentence imposed for

1
No. 08-1352 United States v. Jones Page 2

possession with intent to distribute over fifty grams of cocaine base. Jones argues that the

ten-year sentence is so grossly disproportionate as applied to him that it amounts to cruel and

unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Because

we conclude that the ten-year sentence does not offend the “narrow proportionality

principle” of Harmelin v. Michigan, 501 U.S. 957, 996-1009 (1991) (Kennedy, J.,

concurring), we AFFIRM Jones’s sentence.

I. BACKGROUND

On November 1, 1996, officers from the Lansing, Michigan Police Department

executed a search warrant at a residence in Lansing. Officers found Jones and six others

inside, and a search of the residence recovered crack pipes, a digital scale, and packaging

material. After Jones told officers that he had a gun in his pocket, a search of Jones

recovered a loaded semiautomatic pistol with an obliterated serial number, $600 in cash, and

the keys to a 1993 GMC minivan. During a search of the minivan, officers found a digital

scale and 91.95 grams of crack cocaine. After being informed of his Miranda rights, Jones

admitted that he and his younger brother had driven the minivan from Chicago to Lansing

that day. He said that he had taken the gun, which he purchased on the street in Chicago,

into the residence for protection because he believed it to be a crack house. Two witnesses

told officers that they had purchased crack cocaine at the residence and understood Jones to

be the residence’s main supplier of crack cocaine. Although Jones denied any knowledge

of the crack cocaine found in the minivan at the time, he later admitted that this had been his

fifth trip from Chicago to Lansing to sell crack cocaine. After purchasing crack cocaine in

Chicago, Jones traveled to Lansing to sell it and had made a total of some $12,500 in crackcocaine sales. Presentence Investigation Report (“PSR”) at 4-6.

On August 9, 2007, a grand jury returned a three-count indictment charging Jones

in count one with possession with intent to distribute fifty grams or more of cocaine base in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), in count two with being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and in count three with

possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C.

§ 924(c). On December 5, 2007, Jones pleaded guilty to counts one and three pursuant to

a written plea agreement. Under the plea agreement, the government agreed to dismiss count
No. 08-1352 United States v. Jones Page 3

two and not to file supplementary charges pursuant to 21 U.S.C. §§ 841(b)(1)(A)(iii) and 851

that could have resulted in a life sentence. The plea agreement also contained a waiver-ofappeal provision under which Jones “waive[d] the right to appeal any sentence which is at

or below the maximum of the guideline range as determined by the Court,” but still

“retain[ed] the right to appeal a sentence above the guideline range.” Plea Agreement ¶ 10.

The PSR held Jones responsible for 108.96 grams of cocaine base, based upon the

91.95 grams found in the minivan and application of a crack/cash conversion ratio to the

$600 seized from Jones’s person. The PSR calculated a total offense level of 27 and a

criminal history category of I, resulting in a guideline range of between 70 and 87 months

of imprisonment. However, the two counts to which Jones pleaded guilty carried statutory

minimum terms of imprisonment: 120 months for possession with intent to distribute fifty

grams or more of cocaine base pursuant to 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and

60 months for possession of a firearm in furtherance of a drug-trafficking crime in violation

of 18 U.S.C. § 924(c), to be served consecutively.

On February 28, 2008, Jones filed a sentencing memorandum. Jones stated that he

“understood that [m]andatory [m]inimums have to be followed,” but pointed out that were

it not for the mandatory minimum his “guidelines range for Count I would be substantially

less than the mandatory minimum he will be required to serve.” Jones Sent. Mem. at 3.

Noting that the district court had “its hands tied,” Jones requested that the court sentence him

“to the absolute minimum possible sentence allowed by statute.” Id. Jones also expressed

his hope that he would “have a chance in the future to be before [the district] court under a

[Federal Rule of Criminal Procedure] 35(b) [motion] so that the excessive length of this

mandatory sentence can be justly shortened.” Id. at 4.

On March 4, 2008, the district court sentenced Jones to the mandatory-minimum

sentences for both counts: 120 months for possession with intent to distribute fifty grams

or more of cocaine base, and 60 months for possession of a firearm in furtherance of a drugtrafficking offense, to be served consecutively. Jones timely appealed.

On May 5, 2008, the government filed a motion to dismiss Jones’s appeal, arguing

that Jones had waived the right to appeal his sentence in the plea agreement. Jones filed a

response on June 4, 2008. A motions panel of this court denied the motion to dismiss on
No. 08-1352 United States v. Jones Page 4

July 28, 2008, stating that “[t]he parties may address the waiver issues within the appellate

briefs.” United States v. Jones, No. 08-1352, slip op. at 2 (6th Cir. July 28, 2008)

(unpublished order).

II. ANALYSIS

A. Appellate Waiver

We initially address the government’s argument that Jones waived, via his plea

agreement, the right to appeal the ten-year mandatory-minimum sentence imposed pursuant

to 21 U.S.C. § 841(b)(1)(A)(iii). “We review the question of whether a defendant waived

his right to appeal his sentence in a valid plea agreement de novo.” United States v.

McGilvery, 403 F.3d 361, 362 (6th Cir. 2005). “[P]lea agreements are to be interpreted

strictly, with ambiguities construed against the government.” United States v. Caruthers,

458 F.3d 459, 470 (6th Cir.), cert. denied, 549 U.S. 1088 (2006).

Under the plea agreement, Jones “waive[d] the right to appeal any sentence which

is at or below the maximum of the guideline range as determined by the Court,” but he

“retaine[d] the right to appeal a sentence above the guideline range.” Plea Agreement ¶ 10.

The government argues that Jones’s “mandatory minimum sentence is not ‘above’ the

guideline range; it is the guideline sentence.” Gov’t Br. at 6. In support of this argument,

the government cites Guideline § 5G1.1(b), which provides that “[w]here a statutorily

required minimum sentence is greater than the maximum of the applicable guideline range,

the statutorily required minimum sentence shall be the guideline sentence.” U.S.

SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 5G1.1(b) (2007). The government

essentially argues that because Jones’s 180-month sentence is the “guideline sentence,” it

also constitutes the “guideline range” referenced in the plea agreement. Jones counters that

the waiver provision of the plea agreement does not apply because his statutory-minimum

sentence of 180 months (120 months for the drug-trafficking count and 60 months for the

§ 924(c) count) is significantly above the applicable guideline range of 70 to 87 months

determined by the district court. Thus, Jones argues that the term “guideline range” in the

plea agreement refers to the range of 70 to 87 months calculated by the district court before

applying the statutory minimums, while the government contends that it means the

mandatory-minimum sentence of 180 months. We believe that § 5G1.1 is susceptible to two
No. 08-1352 United States v. Jones Page 5

reasonable interpretations, one of which favors the meaning of “guideline range” urged by

Jones and one of which favors the meaning urged by the government.

First, § 5G1.1 reasonably may be construed to support the meaning of “guideline

range” advanced by Jones. On this view, § 5G1.1 refers to two distinct concepts: the

“applicable guideline range” and the “guideline sentence.” The applicable “guideline range”

is determined by the sentencing court based on the defendant’s offense level and criminal

history. When the statutory-minimum sentence is greater than the top of the guideline range

calculated by the sentencing court, the statutory minimum effectively trumps the guideline

range and becomes the “guideline sentence.” U.S.S.G. § 5G1.1(b). Thus, § 5G1.1(b)

contemplates a two-step process: first, the sentencing court must calculate the applicable

guideline range; next, the sentencing court must determine whether the statutory minimum

exceeds the top of the properly calculated guideline range. If the statutory minimum is

greater than the top of the guideline range, the statutory minimum becomes the guideline

sentence. On this reading of § 5G1.1(b), the guideline range does not become equivalent

to, or merge into, the statutory minimum/guideline sentence.

The dissent offers another reasonable reading of § 5G1.1. In the dissent’s view,

when there is a mandatory minimum that is above the guideline range calculated by the

sentencing court, that mandatory minimum, though a single point, becomes the “guideline

range.”

In light of these conflicting interpretations of “guideline range,” we believe that the

appeal waiver at issue in this case is ambiguous. This ambiguity is highlighted by the fact

that other U.S. Attorneys’ offices evidently employ appeal waivers that eliminate this

ambiguity by requiring a defendant to waive his right to appeal unless the sentence exceeds

the greater of either the guideline range or the mandatory minimum. See, e.g., United States

v. Collins, 264 F. App’x 513, 515 (7th Cir. 2008) (order) (appeal waiver requiring the

defendant to waive any challenge to a sentence unless “the sentence imposed is in excess of

the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum,

whichever is greater)”). We have repeatedly emphasized that ambiguities in plea agreements

must be construed against the government. See, e.g., Caruthers, 458 F.3d at 470; United

States v. Fitch, 282 F.3d 364, 367-68 (6th Cir. 2002); United States v. Johnson, 979 F.2d
No. 08-1352 United States v. Jones Page 6

1

In the context of determining “clearly established “ law for purposes of 28 U.S.C. § 2254(d)(1),

the Supreme Court has also focused upon Justice Kennedy’s opinion in Harmelin. See Lockyer v.

Andrade, 538 U.S. 63, 73 (2003) (“[T]he only relevant clearly established law . . . is the gross

disproportionality principle, the precise contours of which are unclear, applicable only in the ‘exceedingly

rare’ and ‘extreme’ case.” (quoting Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring))).

2

Although we have suggested in dicta that “[f]ederal courts will not engage in a proportionality

analysis except in cases where the penalty imposed is death or life in prison without possibility of parole,”

United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995), Justice Kennedy’s opinion in Harmelin

recognized the possibility that proportionality review could apply to invalidate a sentence for a term of

years, 501 U.S. at 997-98 (Kennedy, J., concurring).

396, 399 (6th Cir. 1992). Given this principle, we conclude that the phrase “above the

guideline range” in the plea agreement means above the guideline range of 70 to 87 months

of imprisonment calculated by the district court before it applied the mandatory minimums.

Accordingly, we hold that Jones has not waived his right to appeal the ten-year minimum

sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(A)(iii).

B. Proportionality Review

Jones’s sole argument on appeal is that the ten-year mandatory-minimum sentence

imposed pursuant to 21 U.S.C. § 841(b)(1)(A)(iii) for possession with intent to distribute

over fifty grams of cocaine base is so grossly disproportionate to the offense committed that,

as applied to Jones, it amounts to cruel and unusual punishment in violation of the Eighth

Amendment to the U.S. Constitution. “A constitutional challenge to a sentence is a question

of law and reviewed de novo.” United States v. Marks, 209 F.3d 577, 583 (6th Cir.), cert.

denied, 531 U.S. 882 (2000).

We have adopted the “narrow proportionality principle” articulated in Justice

Kennedy’s opinion in Harmelin v. Michigan, 501 U.S. 957, 996-1009 (1991) (Kennedy, J.,

concurring). See United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).1

 “Under this

approach, there is no requirement of strict proportionality; the eighth amendment is

offended only by an extreme disparity between crime and sentence.” Id. Applying the

narrow proportionality principle, the controlling opinion in Harmelin upheld Michigan’s

penalty of a mandatory life sentence without the possibility of parole for possession of

more than 650 grams of cocaine, even though the defendant had no prior felony

convictions. Harmelin, 501 U.S. at 1009 (Kennedy, J., concurring).2
No. 08-1352 United States v. Jones Page 7

We previously have upheld against proportionality attack a mandatory sentence

of life imprisonment without parole for a defendant convicted of conspiracy to distribute

cocaine base who was held accountable for 177.8 grams of cocaine base. United States

v. Hill, 30 F.3d 48, 49-50 (6th Cir.), cert. denied, 513 U.S. 943 (1994). Because it was

the defendant’s third felony-drug conviction, 21 U.S.C. § 841(b)(1)(A)(iii) provided for

a mandatory life sentence without the possibility of parole. We applied the narrow

proportionality principle of Harmelin and concluded that the defendant’s “mandatory life

sentence without parole was not so ‘grossly disproportionate’ to his crime as to violate

the Eighth Amendment.” Id. at 50.

In the instant case, Jones pleaded guilty to possession with intent to distribute

fifty grams or more of cocaine base. Like the defendant in Hill, Jones was convicted of

a drug-trafficking offense and was held accountable for a large amount of cocaine base

(here 108.96 grams). Moreover, the mandatory life sentence that we upheld in Hill was

a far more severe penalty than the ten-year sentence that Jones now challenges.

Although Jones points out that his “history as an adult is relatively crime free” and that

he scored just one criminal-history point, Jones Br. at 6, the Supreme Court in Harmelin

upheld a mandatory life sentence for possession of 672 grams of cocaine despite the fact

that the defendant had no prior felony convictions.

Applying the narrow proportionality principle of Harmelin and in light of our

precedents, we cannot say that this case presents the kind of extreme disparity between

the sentence imposed and the crime committed that would offend the Eighth

Amendment. Because we conclude that the ten-year sentence is not grossly

disproportionate to the offense committed, we do not conduct comparative analyses of

the sentences imposed for the commission of the same crime within this jurisdiction or

in other jurisdictions. See Harmelin, 501 U.S. at 1005 (“[I]ntrajurisdictional and

interjurisdictional analyses are appropriate only in the rare care in which a threshold

comparison of the crime committed and the sentence imposed leads to an inference of

gross disproportionality.”).
No. 08-1352 United States v. Jones Page 8

III. CONCLUSION

For the foregoing reasons, we AFFIRM Jones’s sentence.
No. 08-1352 United States v. Jones Page 9

________________________________________________

CONCURRING IN PART, DISSENTING IN PART

________________________________________________

BOGGS, Chief Judge, concurring in part and dissenting in part. With respect to

the merits of this appeal, I agree with the thorough analysis of the lead opinion that the

sentence should be affirmed. However, I believe that we should not reach the merits of

the appeal because Mr. Jones legally waived his right to appeal in the plea agreement

and such agreements are enforceable. See, e.g., United States v. Gibney, 519 F.3d 301,

306 (6th Cir. 2008); United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (“It

is well settled that a defendant in a criminal case may waive any right, even a

constitutional right, by means of a plea agreement.”).

The plea agreement clearly states that Jones “waive[d] the right to appeal” if his

sentence “is at or below the maximum of the guideline range as determined by the

Court,” but could appeal “a sentence above the guideline range.” Jones was sentenced

to what, all agree now, was the proper sentence under the guidelines. However, there

might be two reasons that arguably would allow Jones to escape his clear and bargainedfor waiver. The first of these is that, for technical reasons discussed below, his sentence,

which fully complied with the guidelines, was indeed “above the guideline range” rather

than “at or below the maximum of the guideline range.” The second reason would be

that, regardless of the language of the signed waiver, Jones did not in fact understand

and agree knowingly to the waiver. The lead opinion relies only on the first basis, but

I will address both, and explain why they do not vitiate the waiver. 

The Guideline Architecture

In a common-sense manner, the guidelines establish a method for determining

a range of possible sentences, from which the judge generally may chose a sentence.

Thus, a common range might be 90-120 months, from which the judge could chose a

particular specific sentence. However, the guidelines specifically contemplate that this

“range” can be altered when required by statute as, for example, with a mandatory

minimum or maximum sentence. The guidelines specifically state, at U.S.SENTENCING
No. 08-1352 United States v. Jones Page 10

GUIDELINES MANUAL(“U.S.S.G”)§ 5G1.1(b) (2007), that when the otherwise applicable

range is impacted by such a restraint, the applicable “range” is now restricted so that the

minimum of the range is the statutory minimum, or the maximum of the range is the

statutory maximum.

Thus, if, in the above example, there were a mandatory minimum of 100 months,

the “range” would become 100-120 months. Further, under the explicit language of this

section, if the mandatory minimum were to be 120 months, the “range” would clearly

be 120-120 months, or, in fact a single point. U.S.S.G. § 5G1.1(c)(2). Gibney, 519 F.3d

at 303 (interpreting a plea agreement that said the defendant waived his right to appeal

“a sentence of imprisonment within the applicable Guideline Range, but not less than

any mandatory minimum sentence required by law.”). I don’t think there is any

disagreement in the analysis thus far.

In the case of a mandatory minimum that is above the otherwise established

“range,” the guideline language simply says that the mandatory minimum is the

guideline sentence. U.S.S.G. § 5G1.1(b). However, as just indicated, there is nothing

anomalous with the approved “range” being a single point, and thus I see no dispositive

significance in the use of “guideline sentence” rather than “guideline range” in also

specifying a single point that is the appropriate sentence under the guidelines.

The general import of “range” in the guideline architecture is to specify all

possible sentences that a judge can give without entering the areas of considerations of

“departures from the guideline range” as governed by §§ 5K1.1-5K2.24 of the

guidelines.

Analysis of This Case

That is exactly what happened in this case. In fact, the normal sentence,

available without engaging in the analysis required for a permissible departure, was the

sentence that Jones actually received, 180 months. Thus, I believe that the judge’s

sentence did not trigger the “above the maximum of the guideline range” exception to

Jones’s waiver of his appeal rights. 
No. 08-1352 United States v. Jones Page 11

The plea agreement signed by the defendant unambiguously indicates that he will

be sentenced to a minimum of 180 months in prison. Plea Agreement ¶ 3 (noting that

the statutory minimum sentence for violating 21 U.S.C. § 841(b)(1)(A)(iii) is a ten-year

term of imprisonment and the statutory minimum sentence for violating 18 U.S.C.

§ 924(c) is a five-year term of imprisonment to run consecutive with any other

sentence.). 

In addition, the colloquy at the sentencing hearing, although initially

complicated, thoroughly thrashed out and explained the required sentence. The

defendant quite perspicaciously asked “but if it’s a mandatory minimum, does that

mean—that means he [the judge] has to stay at that amount?” and the judge clearly

answers: “Yes.” After some further discussion, the prosecutor stated: “[T]he judge is

still subject to the mandatory minimum and he cannot, under the law, sentence you to

anything under the mandatory minimum unless the government asks for the release of

the mandatory minimum.” The defendant responds “Right. Okay.” His counsel also

agrees and the defendant then says, in his own words: “So the judge is bound by the

mandatory minimums regardless of anything else that’s going on . . . .” The court then

says again “[y]ou have agreed to . . . giving up your rights to appeal your sentence to

a higher court. If [I] were to sentence you above the guidelines you continue to have

your right to appeal to a higher court.” And defendant specifically says that he

understands and agrees to this. 

As I read the transcript, this issue was thoroughly explored and defendant

understood that the mandatory minimum operated as the guideline sentence, and I would

not give him a second bite at the apple when the waiver of appeal was part of the

bargained-for plea agreement. Thus, I agree with the ultimate outcome that Jones should

get no relief, but I do so for the reason that I believe that we should enforce the appeal

waiver.