NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0360n.06 No. 10-4619 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DI NESH BA FNA , Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OHI O

Be fore : ROGERS and KETHL EDGE, Circuit Judges; RUSSEL L , Chief District J udg e. * KETHL EDGE, Circuit J udg e. Dinesh Ba fna owned and operated a company that sold raw g ranite slabs. On two occa sions, B afna provided fre e g ranite f or a Cuy ahog a County tax auditor’s home. Shortly afte r eac h delivery , Ba fna rec eived a favor able proper ty -tax adjustment—the first for his business, the second for his residenc e. Neither adjustment was the result of a formal proce eding ; the auditor made the cha

ng es on his own. The feder al g overnme nt eventually beg an investig ating the audito r for corr

uption and subpoenae d Ba fna reg arding these transac tions. Ba fna cooper ated fully and ultimately

pled g uilty

to one count of H obbs Act conspira cy under 18 U .S.C. § 1951. Prior to sentenc ing, Ba fna moved for a two-leve l downwar d varia nce beca use the parties had misread the Sentencing Gu i d eli nes when draf ting his initial plea. The district court g rante d the

The Honora

ble Thomas B. Russell, United States Chief District J udg e for th e W est ern * District of Ke ntucky , sitti ng by desig nation.No. 10-4619

United States v. Bafna motion. As a result, Ba fna’ s Gu i d el i n es rang e was four to ten months’ imprisonment. The g overnme nt rec ommen ded that Ba fna be sentenc ed to probation and home detention. But the sentenc ing court found that Ba fna had not fully acc epted responsibilit y for his actions; and thus it sentenc ed him to six months’ imprisonment, restitution, a $10,000 fine, and three y ear s’ supervised rele ase. Ba fna filed a mot i o n t o corr ect or amend the sentenc e, which the district court denied. Ba fna the n filed this appea l. The g overnme nt argues that we should dismiss the appea l beca use, as part of his plea, Ba fna waived the rig ht to appea l any sentenc e that d i d n o t ex cee ded the statutory maxi mum or his Guidelines rang e. Ba fna’ s s en t en ce i n fact did not exceed either of those limit s, and he further admits that his waiver was voluntary

. He asks us to hear his appea l nonetheless, beca use he say s the d istrict court’s sentenc e was based on “unsupported and improper” considerations, and eff ects a “miscar riag e of justice.” Specifica lly , Ba fna think it was unfair for the district court to have criticized him for failing to admit that he actua lly knew his conduct amounted to a bribe, rathe r than admitting only

that he should have known it was a br ibe. We ty pically enfor ce a defe ndant’s waiver of his rig ht to appea l, disreg arding the waiver only in rar e circ umstances, such as when a sentenc e is based on rac ial discrimination or exceeds the statutory maxi mum. See United States v. Caruthers , 458 F.3d 459, 471 (6th Cir. 2006). Neither of those circ umstances is prese nt here

. But Ba fna say s we should broade n our ex ce ption to enfor ceme nt of appellate waiver s, to include case s wher e the sentenc e amounts to a miscarr iag e of justice. The First Circuit follows this approach. See U nited States v. T

eete r , 257 F.3d 14, 25 (1st Cir. 2001). -2-No. 10-4619

United States v. Bafna This case does not prese nt the question whether to adopt t hat approach, beca use t here was

no miscarr iag e of justice here

. Ba fna rec eived a downwar d varia nce and a within-Guidelines sentenc e. None of the proce dural objections that he raises with r espec t to his sentenc e g ive us any

conce rn that the sentenc e itself was a miscarr iag e of justice. The district court was not bound by the parties’ fac tual stipulations, such as whether Ba fna had a g reat er deg ree of culpability than “d eliberate i g noranc e,” see United States v. Davidson , 409 F.3d 304, 311 (6th Cir. 2005), and t h e district c ourt did not rely on “conspic uously false” information in making its sente ncing decision. See United States v. W

ilson , 614 F.3d 219, 223 (6th Cir. 2010). And the fac tors that the district court considere d in deter

mining Ba fna’ s sentenc e surely did not violate any constitutional g uara ntees. We there fore enfor ce B afna ’s waive r and dismiss his appeal.

-3-