NOT RECOMMENDED FOR FULL

- TEXT PUBLICATION File Name: 15a0128n.06
Case No. 14

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AME RICA , Plaintiff

- Appellee ,

v.
JULIUS MAURICE KNOX,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

O P I N I O N
BEFORE: GIBBONS , SUTTON, and Mc KEAGUE, Circuit Judges. McKEAGUE, Circuit Judge. A defendant waives the argument that he does not qualify

as a career offender by explicitly agreeing before the district court that he does qualify as one

. Because Julius Knox waived his only appellate argument, we affirm his sentence

. On October 21, 2010, Knox sold a little over a third of a gram of crack cocaine in a Frisch’s Big Boy bathroom in Ken tucky. U nhappily for Knox , the buyer was a confidential informant , and the sale led to Knox’s federal indictment for knowingly distributing a controlled substance under 21 U.S.C. § 841(a)(1). Knox pled guilty and awaited his sentence

. Prior convictions can affect the length of a sentence, and t his was not Knox’s first run

- in with the law. B etween the ages of eighteen and twenty

- six, he faced one or more charges twentyCase No. 14

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United States v. Knox

2 separate times, and the government convicted him in fourteen of the incidents . R. 43 at 5

– 11 (Presentence Report). A probation officer determined that a t least two of those prior convictions were “ felony convictions of either a crime of violence or a controlled substance offense , ” U.S.S.G. § 4B1.1(a ) , meaning that, when coupled w ith his current conviction, Knox was a “career offender.” R. 43 at 11

. The career

- offender designation put Knox ’s guidelines’ prison
term at between 188 and 235 months (about 151⁄2 to 191⁄2 years). Neither party objected to the designation or suggested sent ence . Before issuing a sentence, the district court heard from Knox ’s counsel , who agreed that the guidelines were “calculated correctly,” R. 49 at 3, and that Knox “qualifies as a Career Offender .” R. 35 at 2

. Rather than challenge that designation, he asked the court to reduce the
sentence to ten year s for equitable reasons

. T he court accepted the first part of the argument (that the career - offender designation applied) but rejected the second part (that Knox’s sentence should be ten years). It follow ed the guidelines and sentenc ed Knox to 198 months ( 161⁄2 years ) in prison. N ei ther side objected to the sentence

. Knox appealed with new counsel , raising only one issue: He does not qualify as a career offender

. Because that is directly contrary to the previous concession that he does qualify as one , e.g. , R. 35 at 2 , t he government argues that Knox waived this argument . We agree. Waiver is the “ intentional relinquishment or abandonment of a known right.” United States v. Olano , 507 U.S. 725, 733 ( 1993)

. A defendant waives an argument that he does not qualify for a sentencing enhancement by “ explicitly agree[ing]” that he does qualify

. United States v. Aparco

– Centeno , 280 F.3d 1084, 1088 (6th Cir. 2002). Such explicit agreement occurs when the de fendant expresses a “plain, positive concurrence” with applying the enhancement , United States v. Mabee , 765 F.3d 666, 671

– 73 (6th Cir. 2014) , like when he “agree[s] in openCase No. 14

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United States v. Knox

3 court” that he qualifies for a designation that increases his sentence

. Aparco

- Centeno , 280 F.3d at 1088. After agreeing , the defendant cannot make the opposite argument on appeal ; the argument is waived and we do not review it

. Id. ; see United States v. Hall , 373 F. App’x 588, 591 (6th Cir. 2010). Knox waived his argument

. His counsel explicitly agreed that Knox “qualifies as a Career Offender

. ” R. 35 at 2

. Knox now recognizes as much : “[His counsel] repeatedly conced[ed] and/or agree[d] that Mr. Knox was a ‘ career offender. ’ ” Reply Br. 2. His c ounsel

even conceded specifics that directly undermine Knox’s appellate argument. Knox argues here that he is not a career offender because one of the prior felonies needed to make him one

— felony assault under extreme emotional disturbance (a Kentucky crime)

— is not a “crime of violence .” Appellant Br. 12

– 14

. Yet his counsel below conceded that the same crime counts as

“ a proper predicate ” felony under U.S.S.G. § 4B1.1(a)

— meaning it is a crime of violence. R. 49
at 13

– 14; see id. at 3. That is more than enough explicit agr eement to constitute waiver

. Knox responds with refreshing candor, agreeing that the “ waiver problems ” in his appeal

mean that we would not ordinarily review his argument . Reply Br. 4. B ut , he says, we should review his sentence for plain error

— in the “ interests of justice

. ” Id. ( citing Aparco

- Centeno , 2 80 F.3d at 1088 )

. Justice was done here, however , because the district court did not err , plain ly or otherwise

. Plain

- error review presents a steep hill to climb in any case. That hill becomes a

moun tain here because we have held that the Kentucky felony “assault under extreme emotional disturbance ”

— the very crime Knox challenges

— is “ a violent felony under the [Armed Career Criminal Act].” United States v. Colbert , 525 F. App’x 364, 370 (6th Cir. 2013) . And the mountain becomes insurmountable because we treat violent felonies under the Armed CareerCase No. 14

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United States v. Knox

4 Criminal Act the same as crime s of violence under the guidelines. United States v. Ford , 560 F.3d 420, 421 (6th Cir. 2009)

. Colbe rt thus squarely governs , at least for plain

- error review. That Colbert is unpublished does not matter to the plain

- error analysis: B ecause there was no Supreme Court or p ublished Sixth Circuit case law to the contrary , the district court did not plainly err in following “ the law, albeit unpublished, of this circuit

. ” United States v. Crouch , 288 F.3d 907, 910 (6th Cir. 2002) ; see United States v. Woodruff , 735 F.3d 445, 450 (6th Cir. 2013)

. A nd even if Colbert were plainly wrong, now is not the time for us to change course: W e may not “ fashion a new rule [on plain

- error review] and then apply it to determ ine whether the district court’s error was plain

. ” Woodruff , 735 F.3d at 451.
But Colbert is not plainly wrong, and so Knox would not succeed even if we gave his claim a fresh look

. He relies on Begay v. United States , 553 U.S. 137 (2008) , and its progeny in our circuit to argue that the Kentucky crime of f elony assault under extreme emotional disturbance does not involve the same kind of “purposeful, violent, and aggressive conduct” as the crimes listed in U.S.S.G. §4B1.2 (a) (2) . Appellant Br. 13

– 16. But it does : It requires “the specific intent ” to “ cause [] physical injury. ” Nichols v. Kentucky , 142 S.W.3d 683, 690 & n.13 (Ky. 2004) ; see Ky. Rev. S tat. Ann. § 508.040 & cmt. (1974) ; accord Colbert , 525 F. App’x at 368

. So it is a “ crime of violence ” no matter how you cut it

. U.S.S.G. 4B1.2 (a)(1) & (2). For these reasons, we affirm.