NOT RECOMMENDED F OR PUBL I CATI ON File Na me: 11a0373n.06 No. 08-1658 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. MI L TON B . J ONES, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATE S DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN OPI NI ON

Before: COLE, CLAY, and GILMAN, Cir cuit Judges. RONALD LEE GILMA N, Circuit Judge. Milton B. J ones cha lleng es seve ral a spects of his 360-month sentenc e and his guilty plea for eng ag ing in a continuing criminal enter prise. J ones

was orig inally char g ed with sever al other counts arising out of his c riminal activities but, pursuant to the terms of his plea ag ree ment, the g overnme nt dismiss ed the rema ining char g es. For the rea sons set forth below, we DISMISS J ones’s appea l due to the appellate-wa iver provision in the plea ag ree ment. I. BACKG ROUND J ones and Ray

mond Canty , along with a number of o t h er co co nspirators, were indicted in J une 2001 on sever al char g es arising out of an org anized drug ring —known as the “Dog Pound”—that opera

ted in the Detroit are a from approximately 1995 until 2001. In addition to selling drug s, members of the org anization also robbed rival drug deale rs and murdere d sever al individuals in the course of their criminal activities. The g overnme nt initially soug ht the death penalty ag ainstNo. 08-1658, United States v. J ones

J ones for the murder of Mark Grice and Antoine Carru t h er s and ag ainst Canty for the murder of Misha Dorsey

. But both J on es and Canty rea ched plea ag ree ments under Rule 11 of the Fe dera l Rules of Crim i n al Procedur e that excluded the murder counts, as well as sever al other char g es. J ones subsequently pled guilty to the continuing- criminal-e nterprise char g e, a crime in violation of 2 1 U.S.C. § 848. Canty pled guilty to conspirac y to distribute coca ine, a crime in violation of 21 U.S.C. § 846, and to conspirac y to launder mone y , a cr ime in violation of 18 U.S.C. § 1956(h). Both defe ndants acknow ledg ed that the applic a b le U

. S. Se n

te n c in g Gu id e li n e s c a ll e d f o r eac h of them to rec eive a life sentenc e. They ag ree d, howeve r, to cooper ate with the g overnme nt and, in exchang e, the g overnme nt pr omised that if either defe ndant wer e to provide substantial a ssistance by implicating others, then the g overnme nt would rec ommend a lower sentenc e for that defe ndant. In the event that the g overnme nt wer e to move for a downwar d depar ture based o n substantial assistance , the defe ndants also rese rved the rig ht to arg ue for a sentenc e lower than the g overnme nt’s

rec ommendation. Finally , as part of their respe ctive plea agree ments, the defe ndants waived most of their a ppellate r ights. A. Jones’s plea agree m ent In J anuar y 2006, J ones pled guilty to the second count of the second superse ding indictment, which char g ed him with eng ag ing in a co n t i n u i ng criminal enter prise involving narc otics, in violation of 21 U.S.C. § 848. The parties ag ree d to the following offe nse elements that the g overnme nt would need to prove at trial: (1) that from approximately 1995 to J une 2001, on at least three or more occa sions, J ones knowing ly committed, as part of a conti n u i n g s eries of related violations, felony violations of fede ral narc otics laws under 21 U.S.C. § 841(a) and § 846; (2) that -2-No. 08-1658, United States v. J ones

J ones’s continuing series of fede ral narc otics violations was undertaken in association and in conce rt with five or more other people, reg arding whom J ones was an org anizer and occupie d a manag ement and supervi s o ry p o s i tion; (3) that J ones obtained substantial income and resour ces from the continuing series of violations; and (4) that a portion of the continuing violations occur red in Detroit and involved the distribution of at least five kilogr ams of a substance containing a detec table amount of coca ine. At J ones’s plea hear ing, his counsel ag ree d that these are the elements of the offe nse that the g overnme nt would have to prove at trial, with the qualification that, as is require d under 21 U.S.C. § 848, J ones was taking responsibility for actions by his coconspirators that wer e rea sonably fore seea ble to him even if Jones did not personally eng ag e in all of those a ctions. J ones stipulated i n his plea ag ree ment to the following fac ts in support of these offe nse elements: (1) he ag ree d with the coconspirators to distribute coca ine, marijuana , and heroin; (2) this distribution involved over five kilogr ams of coca ine; (3) he direc ted the activities of at least five other participants in the di stribution of t hese drug s; (4) he controlled and d irec ted t he dis tribution and storag e of coca ine and marijuana fr o m s everal private residenc es in Detroit that the coconspirators ref

err ed to as the “Dog Pound”; (5) he “and at least [five] other participa nts used the locations to plan the robber ies, kidnaping and intentional killings of rival drug traff icker s and their associate s,” including the murders of two specific individuals; and (6) “that he obtained substantial income and resource s from this continuing series of narc otics and narc otics-re lated violations.” J ones also admitted most of these fac ts at his plea hear ing, with a few qualifica tions that do not aff

ect his satisfying the elements of his off ense.

-3-No. 08-1658, United States v. J ones The plea ag ree ment stipulates that J ones’s adjusted Guidelines adjusted offe nse level is 47, with a criminal-history cate g ory of V, which calls for a life sentenc e. This calc ulation is consistent with the g overnme nt’s statement at J ones’s plea hear ing, to which J ones did not object, t h at the parties ag ree d to a Guidelines calc ulation that calls for life imprisonment. The parties also ag ree d that the statutory

sentenc ing r ang e for

the cha rg ed off ense is a ma

ndatory minimum of 20 y ear s in prison, with a maxim um of life imprisonment. Both J ones’s plea ag ree ment and the statements made at his plea hearing descr ibe his waiver of appellate rig hts. His plea agree ment contains t he following parag raph tit led “W aiver of appeal rig hts”: I f the Court imposes a sentenc e t h at d o es not exceed the top of the rang e descr ibed in ¶ 2 of this a g ree ment [i .e., a life sentenc e], defenda nt waives a

ny rig ht he may have to appea l his co nviction or sentence. I f t he C ourt imposes a sentence that is not below the bottom of the rang e specifie d in ¶ 2, the U.S. A ttorney waives any rig ht he may

have to a ppeal the se ntence

. In addition, the ag ree ment provides as foll o ws i n a s ection titled “Adjusted Sentence Recommendation”:

The parties ag ree that if the U.S. attorney d et er m i n es that defe ndant has provided substantial assistance in the in v es t i gati on and prosec ution of others, the U.S. Attorney will rec ommend that defe ndant be sentenc ed to a term of 360 months

. . . . In the event the court sente nces the defe ndant to a per iod of confine ment in excess of 360 months, the defe ndant will be aff orded the opportunity to appea l such decision. Concomitantly , in the event the court imposes a sentenc e l es s than 360 months, the gove rnment will be af forde d the opportunity

to appea l such dec ision. The p ar t i es also discussed J ones’s waiver of his appellate rights at hi s plea hearing

. First, the g overnme nt pointed out that the plea ag reem en t co n t ains a “significant waiver

. . . of appea l -4-No. 08-1658, United States v. J ones rig hts.” J ones’s at t o rn ey t hen clar ified that “ther e might appea r to be some conflict

. . . or inconsistency betwee n the two ref ere nces to appea l rig hts, but clea rly , it’s my understanding that this ag ree ment provides Mr. J ones the rig ht to appea l any sentenc e that is in excess of 360 months.” The g overnme nt responde d by noting that this appellate rig ht ex i s t ed o n l y if the g overnme nt filed a motion under U.S.S.G. § 5K1.1 for a downwar d depar ture based on J ones’s substantial assistance

. J ones’s attorney

then aske d J ones if he w ished to ask a question, but J ones re sponded, “N o, that’s okay . That’s fine ,” and Jones’s attorne y stated, “I think we’ve resolved that.” J ones and his attorney s signe d the last pag e of his plea ag ree ment under a statement pr o viding that “[b] y signing this docu m en t , t h e d efendant acknowledg es t hat he has read (or been rea d) t his entire documents, understands it a nd ag ree s to its terms; and also acknow ledg es that he is satisfied with his attorn e y ’ s a d

v ic e a nd repr esentation.” Severa l questions and answe rs at J ones’s plea hear ing also ref lected that J ones understood the nature of his guilty plea and the rig hts he was forf eiting by enter ing into the ag ree ment. The district court acc epted J ones’s plea as being made knowing ly and voluntarily

. T h e Pro b a ti o n O f f ic e ’ s Presentenc e Report (PSR) calc ulated a Sentencing Guideli n e s o f f e n s e level o f 4 9 (as opposed to the offe nse level 47 in the plea ag ree ment), but this differ ence is inconseque ntial beca

use offe nse level 43 is the maxi mum level under the Guidelines. J ones objected to a number of fac tual deter minations that wer e made in the PSR , as well as to the PSR ’s Guidelines calc ulation. These objections included J ones’s claim that the Guidelines did not allow for mur der to be cons i d er ed u nder the continuing- criminal-e nterprise charg e that he ag ree d to in his plea ag ree ment and that there was no fac tual basis to f ind him responsible for the G rice and Carr uthers -5-No. 08-1658, United States v. J ones murders or , at the ver

y least, for first-degree murder. T he cour t held a hea

ringand denied J ones’s

numerous objections. As promised, the g overnme nt later filed a motion for a downwar d depar ture to a sentenc e of 360 months’ imprisonment based on Jones’s substantial assistance

. At J o n es’s sentenc ing hear ing in May 2008, the parties and the court reaf firmed his g uilt y plea. J ones argued for a sentenc e lower than 360 months based in part on the cl ai m s that he had alre ady raised in his objections to the PSR

. The co u rt u ltimately acc epted the g overnme nt’s sentenci n g rec ommendation as well as t he facts and Guidelines calculation in the P SR. Ba sed on t h e s e f i n d i n g s , t h e c o u r t s en t en ce d J o n es t o 3 6 0 m o n t h s i n p r i s o n o n t h e continuing- criminal-e nterprise char g e, as w ell as to five year s of supervise d rele ase. B. Canty’s plea agre em ent Canty ’s p l ea agr eeme nt contained the same waiver of appellate rig hts as did J ones’s ag ree ment, except that the g overnme nt ag ree d to rec ommend a sentenc e of 240 months in p ri s on i n s t ea d of the 360 months that it rec ommended for J ones. L ike J ones, Canty objected to variou s elements of his PSR and also soug ht a lower sentenc e based on various other g rounds. The district court reje cted Canty ’s ar guments and, in J anuar y 2008, imposed the g overnme nt’s rec ommended sentenc e of 240 months in prison. C. P roce dural h istory Both J ones and Canty filed timely appea ls of their sentenc es. In J anuar y 2009, these separ ate appea ls wer e consolidated for purposes of briefing and submissi on. The g overnme nt filed a motion to dismiss the appea ls in J une 2009 on the basis that the defe ndants had waived their appellate rig hts. Both case s wer e initially assig ned to the same panel of this court, to be hear d in April 2011, but wer e -6-No. 08-1658, United States v. J ones

separ ated in Fe bruar

y 2011 when J o n es ’s m o t i on to resc hedule the date of his oral argument was g rante d. This court dismiss ed Canty ’s appea l on April 15, 2011 base d o n Canty ’s waiver of appellate rights in his plea ag ree ment. United States v. Canty , No. 08-1258, 2011 WL 1441909 (6th Cir. Apr. 15, 2011) ( unpublished opinion). D. Canty’s appeal On appea l, Canty raised seve ra l o b j ec t i ons to his sentenc e based on the alleg ed lack of proce dural an d s ub s tantive reasonablene ss. But, as this court highlig hted, “[ n]ot ably , Canty does not claim that his guilty plea is invalid, let alone that the appea l waiver is invalid or limit ed.” Id. at *4. “In short, both side s rec eived the be nefit of their barg ain.” Id. at *5. In exchang e for Canty ’s guilty plea and substantial assistance , the g overnme nt ag ree d to dismiss Canty ’s rema ining char g es, to ref rain from pressing for th e d eath penalty , and to rec ommend a sentenc e of 240 months’ imprisonment instead of 360 months. The court there fore dismiss ed Canty ’s appea l beca use he had waived his right to appeal. II. JURISDICTION Even wher e a defe ndant has waived the rig ht to appea l, this court still reta ins jurisdiction to hear the defe ndant’s challeng e to the judgme nt of the district court. Id. (dismissing Canty ’s appea l rathe r than dec lining jurisdiction, based on United States v. Caruthers , 458 F.3d 459, 472 n.6 (6th Cir. 2006) (noting that althoug h “we have said that a valid appellate waiver leave s this court without jurisdiction to hear a sentenc ing appea l,” we have also “af firmed sentenc es challeng ed by defe ndants who had validly waived their appea ls.

. . . [This ] sug g est[s] that an appellate waiver does not divest this court of jurisdiction” (e mphasis in origina l))). -7-No. 08-1658, United States v. J ones

III. ANALYSIS J ones, like Canty , raises a number of proce dural- and substantive-re asonable ness objections to his sentence. H e ar gues that the dist rict court’s failure to explain why it reje cted his obj ections to the PSR ’s Guidelines calc ulation was proce durally unrea sonable. J ones’s specific objections to the Guidelines calc ulation include challeng es to the district court’s (1) adopting a base offe nse level of 43 based on the homicides t h at wer e part of his continuing criminal enter prise; (2) reje cting a decr ease to J ones’s offe nse level under § 3E1.1 based on his acc eptanc e of responsibility ; (3) rejec ting J ones’s objection to the P SR’s two-leve l upwar d adjustment pursu an t to § 3A1.3 for the restra int of a v i ct i m ; (4) ref using to reduc e J ones’s criminal-history score ; and (5) reje cting J ones’s motion for a

downwar d depar

ture or va rianc e, and the court’s a cce pting the g overnme nt’s

rec ommended sente nce, a ll without any rea soning. Two additional challeng es are prese nted by J ones that he raises for the first time on appea l. These are (1) that the district court did not ensure that J ones understood the nature of the char g e to which he ple d guilty , and (2) that the cour t did not have a suff

icient fa ctual basis for acc epting his guilty plea. He asks us to vacate his g uilty plea a nd rema nd the ca se for

a new plea he aring

. A. Validity of

Jones’s plea agree m ent As J ones’s attorney

acknow ledg es, the two additional challeng es t o the validi ty of J ones’s plea ag ree ment wer e not raised below and are there fore revie wed under the plain-er ror standard. See United States v. Mobley , 618 F.3d 539, 544 (6th Cir. 2010). The first such claim is that the district court violated Rule 11(b)( 1)(G) of the Fe dera l Rules of Criminal Procedur e by failing to ensure that J ones under stood the nature of the cha rg e to which he pled guilty

. -8-No. 08-1658, United States v. J ones

“A guilty plea is valid if it is enter ed knowing ly , voluntarily , and intelligentl y by the defe ndant. Rule 11 is meant to e nsure that the district court is satisfied that the defe ndant’s plea is knowing , voluntary , and intelligent.” United State v. W ebb , 403 F.3d 373, 378 (6th Cir. 2005) (citation omitted). This rule require s, among other things, that befor e a court acc epts a defe ndant’s guilty plea, “the court must inform the defe ndant of, and deter mine that the defe ndant understands . . . the nature of ea ch cha rg e to which the de fenda

nt is pleading .” F ed. R. Crim. P. 11(b)(1)(G ). “B eca use a guilty plea involves the admission of all the elements of a formal criminal char g e, the acc used must have knowledg e of all those elements.” United States v. Valdez , 362 F.3d 903, 908 (6th Cir. 2004) (citations and internal quotation marks omitted). “At a minimum , the defe ndant must understand the critica l or essential elements of the offe nse to which he or she pleads guilty .” Id. at 909 (interna l quotation marks omitted). J ones contends that the district court did not ensure that he understood the way in which the char g e ag ainst him was based on the murders of Grice and Carruthe rs. He also argues, pursuant to Rule 11(b)( 3), that there is no fac tual basis in the rec ord to support his offe nse being based on these murders. See Fe d. R. Crim. P. 11(b)( 3) (“B efor e enter ing judgme nt on a guilty plea, the court must deter mine that there is a fac tual basis for the plea.” ). J ones specific ally arg ues that his offe nse level

was err oneously based on first-degree rathe r than second- deg ree murder. He further claims that “ther e was insufficient evidenc e connec ting him to any o f the two homicides — that wer e not committed in furth er an ce of [t he continuing criminal enter prise].” These arguments are all

connec ted beca

use “Rule 11(b)( 1)(G) ’s require ment that a defe ndant under s tand the essential

-9-No. 08-1658, United States v. J ones elements of the crime is i n t egr al l y related to Rule 11(b)( 3)’s require ment that the district court deter mine that the plea ha s a fa ctual basis.” See V aldez , 362 F.3d a

t 909. But J ones’s challeng e to the validity of his plea ag ree ment based on the murders is without merit beca

use the murders we re n o t p art of the ultimate char g e ag ainst him. Under the plea ag ree ment, the g overnme nt dropped the homicide char g es ag ainst J ones. He instead pled guilty to eng ag ing in a continuing criminal enter prise, i n violation of 21 U.S.C. § 848, which car ries a statutory maxi mum pe nalty of life imprisonment. And Jones’s attorney agree d at the plea hear ing t h a t l i fe i m p r i s o n m e n t w a s t h e s t a t u t o r y - m a x i m u m s e n t e n c e f o r J o n e s ’ s continuing- criminal-e nterprise offe nse. J ones’s continuing- cri m i n al -enterprise char g e includes his violation of 21 U.S.C. § 841, based on the Dog Pound’s distribution of narc otics, as an element of his offe nse. Murder can, under

some circ umstances, be an element of a continuing- criminal-e nterprise violation under § 848 or of

a narc otics violation under § 841, but the statutes also allow for sentenc es of life imprisonment even wher e murder i s not an element of t he offense. The parties in the present case agree d, both in the plea agree ment and at the plea hear ing, that J ones’s continuing- criminal-e nterprise char g e is based

on the Dog Pound’s distribution of drug s in violation of 21 U.S.C. § 841(a) and § 846. This char g e specific ally excludes the element of murder. Although the murders wer e rele vant to J ones’s Guidelines calculati on, they are not an element of hi s continuing- criminal-e nterprise charg e. The court thus proper ly asked J ones at his plea hea ring : “[D]o you understand that with reg ard to this [Guidelines] calc ulation, Imust have t he probation department’s pr esente nce r eport be fore finally

-10-No. 08-1658, United States v. J ones deter mining how those guidelines [calculations] might come out” in the prese nt case , to which J ones responde d: “Yes, sir.” Moreove r, J ones admitte d at his plea hear ing that he rea sonably fore saw that his coconspirators’ activities could lead to the homicides. Th e s t atement of fac ts in J ones’s plea ag ree ment, which was ref ere nced at his plea hear ing, g oes even further , acknow ledg ing that he “and at l east 5 other participants . . . plan[ned] t he robbe ries, kidnaping and intentional killings of rival drug traff icker s and their associate s,” including the murders of Grice and Carruthe rs. These murders also fac tored into the Guidelines c alculation that Jones ag ree d to in his pl ea a gree ment. In addition, J ones claims that he did not admit and that the g overnme nt and the district court did not establish that he acte d “in co n ce rt ” with five or more other people or that he was an org anizer, manag er, or super visor of these othe r people , in violation of 21 U.S.C. § 848(c)(2)( A). But J ones admitted at his plea hear ing that he “dire ct[ed] the activities of at least five other individuals fr om 1995 throug h 1998 with r eg ard to these var ious drug -re lated activities.” He then proce eded to answe r aff

irmatively a series of questions reg arding the activities of people th at h e worke d with in the Dog Pound. J ones also admit t ed in his plea agree ment that he “dire cted the activities of at least 5 other participa nts in the distribution of coca ine, heroin and marijuana ” and that he agree d with nine of the c oconspirator s to distribut e these drug s. These challeng es to the knowing , voluntary , and intelligent nature of J ones’s plea ag ree ment

are unfounded and cer

tainly do not survive plain-er ror revie w. Moreove r, on this rec ord, J ones’s acknow ledg ments in his plea ag ree ment and at his plea hear ing that he understood the various terms

-11-No. 08-1658, United States v. J ones of his plea b ar gai n l eave no room for doubt that his ag ree ment was knowing , voluntary , and intelligent. B. Jones’s wai ver of his ap pellate rights J ones’s rema ining challeng es conce rn the proce dural and substantive rea sonablene ss of his sentenc e. But, just as this court previously decide d with reg ard to C an ty , J ones ag ree d to a substantial waiver of his appellate rig hts. J ones argues that he did not waive the rig ht to bring these challeng es to the rea sonablene ss of his sentenc e. Whether a defe ndant’s plea agree ment has waived the right to appea l his or her sentenc e is revie wed de novo. United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005). In his plea ag ree ment, J ones acknow ledg ed that “[i] f the Court imposes a sentenc e that does not exceed the top of t he rang e described in ¶ 2 of t his ag ree ment [i .e., a life sentence], defe ndant waives an y ri gh t h e may have to appea l his conviction or sentenc e.” J ones car ved out from this broad waiver the limit ed rig ht to appea l if the g overnme nt wer e to move for a downwar d depar ture and the court proce eded to sentenc e him to over 360 months’ imprisonment. But beca use J ones was sentenc ed to exactly

360 months’ imprisonment, thi s appellate rig ht was neve r trig g ere d. Acc ording to J ones, the blanket waiver provision reg arding “any rig ht he may have to appea l his convicti o n o r s entence” does not apply if the g overnme nt filed a motion for a downwar d depar ture based on his substantial assistance

. But nothing in the plea ag ree ment limit s this broadly applicable waiver in the way that J ones sug g ests. Although the ag ree ment’s provision for the rig ht to appea l sentenc es above 360 months (if the g overnme nt moved for a downwa rd depa rture) does not expli citly state that this rig ht is rese rved from J ones’s g ener al waiver of his other appellate rig hts, -12-No. 08-1658, United States v. J ones this is the onl y rea sonable reading of t he two s epar ate appellate- waiver provisions in J ones’s plea ag ree ment. J o nes barg ained for the g overnme nt to drop the rema ining char g es ag ainst him, t o re fr ai n from seeking the death penalty , and to rec ommend a sentenc e of 360 months in prison instead of life if he provided substantial assistance

. In exchang e, J ones ag ree d to waive “any rig ht he may have to appea l,” except for the limit ed rig ht to appea l sentenc es above his barg ained- for 360 months. J ones has provided no rea son why we should rea d the limit ation that he sug g ests into his broad waiver of appellate rig hts. As this court noted in Canty ’s appea l, “[p] lea ag ree ments are contra ctual in nature , so we use traditional contra ct law principles in interpre ting and enfor cing them.” Canty , 2011 WL 1441909, at *5 (quoting United States v. Harris , 473 F.3d 222, 2 2 5 (6 t h Cir. 2006)). The only rea sonable interpre tation of J ones’s waiver of appellate ri gh t s is that even if the g overnme nt moved for a downwar d depar

ture based on his substantial assistance , J ones had waived his rig ht to appea l so long

as his sentenc e did not exceed the rec ommended 360 months. Moreove r, at J ones’s plea hear ing, the parties ag ree d that J ones’s ability to appea l sentenc es above 360 months constitu t ed the only exception to J ones’s broad waiver

. This nece ssarily implies that he had no such rig ht if the sentenc e imposed was 360 months or less. The appellate -wa iver provision there fore unambiguously applies to the t y pe of procedur al- a

nd substantive- re asonable ness claims that Jones now attempts to raise on appea l. In addition, J ones cl aims that his rese rvation of appellate rig hts for sentenc es above life imprisonment was “an impossibi lity and illusory .” But this provision, when rea d in context, makes -13-No. 08-1658, United States v. J ones eminent sense. First, beca use J ones barg ained for the g overnme nt to ref rain from seeking the death penalty , his waiver of appellate rig hts even if the g overnme nt soug ht a life sentenc e was not illusory

. And beca us e J o n es re serve d the additional rig ht to appea l sentenc es above 360 months if the g overnme nt moved for a downwar d depar ture, he rec eived even more from his plea barg ain than just the g overnme nt’s guara

ntee that he would not fac e the de ath pena lty

. J ones attempts to counter these points by

noting his agree d-upon ability to seek a sentenc e

even lower than 360 months. But, as this court explained reg arding the same aspec t of Canty ’s plea ag ree ment, “[t] he fac t that [J ones] had a right to argue for imposit ion of a lower sentenc e befor e the district court does not equate to a right to appea l the district court’s ref usal to impose a lower sentenc e unless explicitly exempted from the appe llate waive r provision.” Id. at *6 n.4. Finally , J ones claims that he did not waive the ability to appea l any

miscarriag es of justice that took place at his sentenc ing, such as the alleg edly err oneous Guidelines calc ulations or the district court’s lack of rea soning. Although J ones is corr ect reg arding the well-settled principle “in the fede ral courts that a defe ndant who waives his rig ht to appea l does not subject himself to being sentenc ed entirely at the whim of the district court,” his proce dural- and substantive-re asonable ness challeng es do not rise to the level that this principle contemplates. See United States v. Caruthers , 458 F.3d 459, 471 (6th Cir. 2006) (interna l quotation marks omitted) (holding that defe ndants cannot waive the rig ht to appea l sentenc es above the statutory maxi mum). The forc e of J ones’s challeng es

are particula

rly wea k beca use he ag ree d to the 360-m onth sentenc e that he rec eived, a sentenc e clea rly less than the statutory

maxi mum of life imprisonment.

-14-No. 08-1658, United States v. J ones

A defe ndant may waive even constitutional rig hts, provided that the waiver is knowing and voluntary

. Canty , 2011 WL 1441909, at *4. As this c ourt explained r eg arding Canty ’s very same waiver of appellate rig hts, “this court has ‘re peate dly enfor ced p l ea ag ree ments waiving specific appellate rig hts under simil ar circ umstances.’ ” Id. at *5 (quoting United States v. Coker , 514 F.3d 562, 573-74 (6th Cir. 2008)). We there fore adopt the same conclusion rea ched in Canty ’s case that “the plain languag e of the written ag ree ment here prec ludes [J ones] f rom raising the arg

uments he now pre sents on appea l.” Id. IV. CONCLUSION For all of the rea sons set fo rt h above, we DISMISS J ones’s appea l due to the appellate -wa iver provision in his plea agree ment.

-15-