NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0059n.06 No. 09-4266 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DEL TONI O L . DORSEY, Def endant- Appellant. ) ) ) ) ) ) ) ) ) On Appea l from th e Uni ted States District Court for the Norther n District of Ohio

Be fore : BO GGS and MCKEAGU E, Circuit J udg es; and GO L DSMI TH, District Judge. * BO GGS, Circuit J udg e. This appea l prese nts two issues: whether Dorsey ’s plea ag ree ment

was made “knowing ly and voluntarily ,” and wh et h er Dorsey waived the rig ht to challeng e his
sentenc e—which was within the Guideline ra ng e—under

the plea a g ree ment. The answe r to both questions is y es. The judge provided a compre hensive plea colloquy , wher e Dorsey stated numerous times that he understood his rig hts and had no questions. Fur ther, the plea ag ree ment prohibited an appea l of a within-g uidelines sentenc e. The sentenc e was within Guidelines, and t h us cannot be appea led. I

The Honora

ble Mark A. Goldsmith, United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation.No. 09-4266

United States v. Dorse

y Deltonio L

. Dorsey , a convicted felon, was ar rested by the Warren Police Depa rtment for possess i o n o f a re v o lver with five rounds of ammunition. Dorsey was indicted in the Norther n District of Ohio for possession of a fi re ar m by a convicted felon, in violation of 18 U.S.C. § 922(g )(1)

. During the chang e of plea hearing , the di strict court re viewed the plea ag ree ment with Dorsey in gr eat de tail. After the judge explained his rig hts to Dorsey , Dorsey indicated he had no questions about the waiver of his “constitutional trial rig hts,” the nature of the char g e, the maxi mum penalties—including a sentenc e of up to 1 0 y ea rs an d three y ear s of supervised rele ase. Fur ther, J udg e Christopher A. Boy ko told Dorsey that he could not “withdra w [hi s] plea of g uilt[ y ]” even if the sentenc e handed down “is differ ent from what is rec ommended here ” or if he was “dissatisfied with” it. The court walked Dorsey throug h the section in the plea ag ree ment on “coope ration” in what J udg e Boy

ko descr ibed as a “pre tty detailed” fashion. Fi rs t , t h e court stressed that Dorsey must “f u l l y cooper ate” “a hundred perc ent,” not “70%, 80 or 90.” After explaining the importance o f being truthful and completely honest with the Uni t ed States Attorney , the court turned to the g overnme nt’s side of t he agr eeme nt. Fir s t, J udg e Boy ko explained that in “conside ration of what [Dorsey ] promised, the g overnme nt a g ree s not to use any of y our information or testimony ag ainst y ou except, of course , for the perjury and obstruction.” Second, J udg e Boy ko war ned that “[i] f y ou do fully cooper ate, the g overnme nt

. . . at the time of s entenc ing, could move that I reduc e y our offe nse leve l by

one leve l to credit y ou for substantial assistanc e.” T hird, J udg e B oy ko noted that if he wer e to reduc e the offe nse level by one level, then the “adjusted offe nse level [would be] 20.” Four th, the court admonished Dorsey that if he “d[id] not fully cooper ate as require d under this plea - 2 -No. 09-4266

United States v. Dorse

y ag ree ment, the g overnme nt is rele ased from its obligations, including any rec ommendation to lower y our offe nse level, and [y ou will] have no rig ht to withdraw y our plea of g uilt.” J udg e Boy ko noted that he “norma lly follow[s] ” the rec ommendation of the plea ag ree ment. The court asked whether Dorsey understood eac h point and he answe red aff irmatively , stating that he understood his rig hts. Wit h respe ct to his rig hts on appea l, ref err ing to Parag raph 19—labeled “Waiver of appea l, defe nses, and collater al attack rig hts”—the court told Do rsey in no uncer tain terms “that fanc y lang uag e means that y ou are g iving up rig hts of appea l unle ss y ou specific ally rese rve them in this plea ag ree ment.” J udg e Boy ko asked, do “[y ]ou understand that, Mr. Dorsey ? ” Mr. Dorsey said he understood not once , but twice, answ ering “Ye s. Yes.” After explaining the wa iver of appellate rig hts, the court listed the exceptions unde r which Dorsey could appea l—if the “sente nce [] exceeds, g oes above, the Guideline rang e,” if “ther e’s been ineffe ctive assistance of counse l or prosec utorial misconduct,” a nd if the cour

t does “not g o along with the rec ommendations of this plea ag ree ment.” The court war ned that, for “[e]very

thing else y ou

are waiving or g iving up” y our appellate rig hts. Wit h respe ct to para g raph 19, and the waiver of his appellate rig hts, Mr. Dorsey had no questions. Dorsey also indicated that he had had “suff icient time to sit down with Mr. Palombaro [hi s attorney ] and go over ever y thin g.” After J udg e Boy

ko asked if Dorsey had any further questions, he turned to Palombaro, and asked if Dorsey “ente r[ed] into this plea knowing ly , intelligently , and voluntarily .” Palombaro an s we red affirmatively

. Finally , the court asked Dorsey , “As to Count 1 of the indictment which char g es y ou with being a felon in possession of ammunition, a violation of Title 18, Section 922(g )(1) , United States Code, to that char g e how do y ou plead? ” Dorsey - 3 -No. 09-4266

United States v. Dorse

y

answe red, “Guilty .” Wit h that plea—the culmination of the compre hensive colloquy —J udg e Boy

ko found that “the defe ndant has knowingly, voluntarily, and intelligently enter ed his plea with a full understanding of his constitutional rig hts, full understanding of t h e plea ag ree ment.” The court further found “a substantial fac tual basis to support the elements of the char g e bey ond a rea sonable doubt.” Fina lly , the cour

t “ac cept[ed] his pl ea of

g uilt” and sig ned the plea ag ree ment. The district court sentenc ed Dorsey to a term of imprisonment of 77 months, to be followed by three y ear s of supervise d rele ase. D orsey now cha lleng es his g uilty plea, a nd his sentence

. II Dorsey arg

ues that his plea was not knowing , intelligent, and voluntary

. As such, the district
court err ed when it acc epted the plea. This argument is without merit. “The issue of whether a plea

was knowing , voluntary , and intelligent is a leg al question that this Court revie ws de novo .” United States v. Dixon , 479 F.3d 431, 434 (6th Cir. 2007) (quot i n g United St ates v. Jones , 403 F.3d 817, 822-23 (6th Cir. 2005)). Dorsey contends that he did not understand his plea ag ree ment, particula rl y its waiver of appea l and cooper ation provisions. The rec ord does not support these claims. J udg e Boy ko should be commended for walking Dorsey throug h the colloquy car efully and thoroug hly

. At eac h step, the
court asked whether Dorsey fully understood and had any questions. At eac h stag e, Dorsey indicated that he ag ree d, and had no questions. The court also elicited from Dorsey ’s counsel a statement that the plea was “knowing , intelligent, and voluntary .” Acc eptanc e of Dorsey ’s plea does not constitute

reve rsible er

ror.

- 4 -No. 09-4266

United States v. Dorse

y Def endant puts forth three somewhat-r elated arguments. First, Dorsey now claims that when he entered the plea, he was unde r the impression that his cooper ation would result i n a downward depar ture, rathe r than a one-le vel reduc tion to his adjusted offe nse level. The court spent some time explaining how the cooper ation provisions would work, noting that Dorsey might rec eiv e a o ne-le vel reduc tion if he cooper ated fully with the United States. There was absolutely nothing in the colloquy
to sug g est that he would rec eive a downwar d depar ture in light of any cooper ation he provided. I f, for whateve r rea son, Dorsey was under the impression that he would rec eive a downwar d depar ture, t h e t i me to raise that objection was at the colloquy , during the numerous occa sions when J u d ge Boy ko asked Dorsey and his attorney if they had any questions. Neither D orsey , nor his counsel, made a ny such inquiry

. Second, Dorsey now asser ts that at the time of the plea, he did not understand the waiver of his ap p el l at e ri ghts. J udg e Boy ko asked a number of questions about the waiver of his appellate rig hts, explained what leg al terms like “wa iver” and “collate ral attack” meant, and itemiz ed the exceptions to the plea ag ree ment wher e an a ppeal would be proper . Dorsey had no questions, a nd stated that he fully ag ree d with the ag ree ment. Dorsey knowing ly , voluntarily , and i n t el l i gen t l y waived his a

ppellate r ights. Third, Dorsey n o w cl ai m s that his “low cog nitive level” contributed to his inability to understand the plea. To support this asser tion, Dorsey cites the prese ntence repor t’s statements that he “wa s diag nosed with Attention Def icit Disorder when h e wa s 1 0 y ea rs old,” that he was in “lea rning disabled cla sses from g rade s 9 throug h 11,” that a 1998 Multi fac tored Eva luation found that Do r s e y ’ s “ le v e l of intellectual functioning was in the border line rang e with signific antly strong er - 5 -No. 09-4266

United States v. Dorse

y perf ormanc e skills than verbal abil ities,” and that he had defic its in “communication and socialization skills.” First, we note that the prese ntence repor t was prepa

red after the chang e of plea colloquy , and there was no way for J udg e Boy ko to consider these statements prior to acc epting the plea. Fur ther, this court has held that alleg ations of mere “mental difficulties cannot show that [t he defe ndant] did not understand the rig hts he was waiving ,” United States v. Taylor , 281 F. App’x 467, 471 (6th Cir. 2008) (unpubl i s h ed ), as t hey do not “‘indicate[] that [t he defe ndant] was mentally incapa ble of unde rstanding , appre ciating , and wa iving his constitutional rig hts . . . .’” Ibid. (citing and quoting Fautenberry

v. Mitche ll , 515 F.3d 614, 637 ( 6th Cir. 2008)). The statements in the prese ntence repor t, even i f accepted as true, when rea d in light of Dorsey ’s conduct at the sentenc ing h ea ri ng , would not show that he was “mentally incapa ble of understanding , appre ciating , and waiving his constitutional rig hts.” Ibid. Dorsey , with t h e aid of his counsel, had ever

y opportunity to info rm t h e court of his aptitude, to reque st additional information or c larifica

tion, and even se ek spec ial testing or counseling prior to enter ing a plea of g uilty to ensure that he was acting knowing ly , intelligently , and volunt arily

. Dorsey took no such steps. The c ourt did not err in a cce pting Dor sey ’s g uilty plea. III We “re view[] the question of whether a defe ndant waived his rig ht to appea l his sentenc e in

a v al i d p lea ag ree ment de novo .” United States v. Swanberg , 370 F.3d 622, 626 (2004) (quoting Un i ted States v. Smith , 344 F.3d 479, 483 (6th Cir. 2003)). This court has found that “[c]rimi nal defe ndants may waive their rig ht to appea l as part of a plea ag ree ment so long as the waiver is made knowing ly and voluntarily .” Swanberg , 370 F.3d at 625. I ndeed, it is “we ll settled that a defe ndant - 6 -No. 09-4266

United States v. Dorse

y in a criminal case may waive any rig ht, even a constitutional rig ht, by means of a plea ag ree ment.” United States v. Mc Gilvery , 403 F.3d 361, 362 (2005) (int erna l punctuation and citation omitted). Plea ag ree ments may also “wa ive constitutional or statutory rig hts then in exis tence , as well as those that courts may rec og nize in the future.” United States v. W ilson , 438 F.3d 672, 673 (6th Cir. 2006) (citing United St ates v. Br a d l ey , 4 0 0 F. 3 d 459, 463 (6th Cir. 2005)). Dorsey ’s “willi ng ness t o be
sentenc ed under the Guidelines and g ener ally to waive his rig ht to appea l binds him no less now than it did when he sig ned the a g ree ment.” Bradley , 400 F.3d at 466. The court highlig hted three instances wher e Dor s ey could appea l his sentenc e—if the “sente nce [] exceeds, g oes above, the Guideline rang e,” if “ther e’s been ineffe ctive assi s t an ce of counsel or prosec utorial misconduct,” and if the court does “not g o along with the rec ommendations of this plea ag ree ment.” First, the sentenc e did not exceed the Guideline rang e. The sentenc e of 77

m o n ths is within the Guideline rang e of 70-87 months, and below the statutory maxi mum o f 1 2 0 months. Second, there have been no alleg ations of ineffe ctive assistance of counsel or prosec utorial misconduct. Third, the court abided b y t he rec ommendations in the plea ag ree ment during
sentenc ing. As J udg e Boy

ko told Dor sey , bey ond these three exceptions, f or “[e]very

thing else y ou are waiving or g iving up” y our rig ht to appeal. Indeed. B eca use Dorse y ’s within-Guidelines sentenc e did not fall into one of the exceptions that permitted an a ppeal, the judg ment below must stand. IV The district cour

t’s judgme nt of conviction is aff irmed, and the appea l from the sente nce is dismi ssed. - 7 -