NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0402n.06 No. 08-2171 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff - Appellee ,

v. J AMES SHYQUAN F L OWERS , Def endant - Appellant.

______________________________ ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN O P I N I O N

Before: BATCHELDER, Chief Judge; BOGG S and WHITE , Circuit Judges.

HELE NE N. WHITE, Circuit Jud ge. Def endant J ames Flowers appea ls the 144-mont h within-Guidelines sentenc e imposed following his g uilty plea, arg ui n g that the plea ag ree ment’s appellate -wa iver provision does not prec lude this appea l and shou l d not be enfor ced beca use of ineffe ctive assistance of counsel, that his sentenc e is proce durally unrea sonable beca use the district
court i n co rr ectly calc ulated the Guidelines rang e and failed to assess the value of his substantial

as s i s t an ce, and that the court abused its discretion in reje cting his pro se motion for a downwa rd depar ture or a varia nce. We dismiss Flower s’s appe al pursuant to his plea a g ree ment. I A g rand jury returne d an indictment char g ing Flowe rs wi t h o n e count of possession with intent to distribute 50 gra m s o r m o re of coca ine base, in violation of 21 U.S.C. §§ 841(a) (1) and (b)( 1)(A) (iii). Pursuant to a written plea ag ree ment, Flowe rs pleade d g uilty to the sole count of theindictment. One condition of the plea ag ree ment was that Flowe rs waive the rig ht to challeng e his

sentenc e on appea l, “except

. . . on g rounds, prese rved at sentenc ing, that t h e C o u rt i ncorr ectly deter mined the g uideline rang e.” R. 2 3 [ h er ei n af t er Plea Ag ree ment], at 3, ¶ 5B. The plea ag ree ment also allowed Flowe rs to file a post-conviction attack, pursuant to 28 U.S.C. § 2255, based on a cla im of ineffe ctive assistanc e of c ounsel. Flowe rs’s Presentenc e I nvestig ation Report (“PSR”) deter mined that he had an offe nse level of 29 and a criminal-history cate g ory of V, re sulting in a Guidelines rang e of 140 to 175 months. Of particula

r rele vance to this appea l, the PSR found that Flowe rs had serve d 115 day s on an ear lier marijuana -posses s i o n o ffe nse, which incre ased his criminal-history level by two points. Counsel objected in writing , arg

uing that Flowe rs i n fac t rec eived a lesser se ntence for this conviction, but the PSR reje cted the a

rgument. Prior to his sentenc ing he aring , Flowe rs filed a pro se motion for a downwar d depar ture or

a varia nce with an attache d letter of allocution, in which he asked t h e co urt to consider the 100:1
sentenc ing disparity betwee n cra ck- and powder -coc aine offense s, as well as several other fac to rs under 18 U.S.C. § 3553(a)

. The mag istrate judge reje cted this pleading and order ed Flowe rs to file all motions and documents throug h his court-a ppointed attorney or submit them durin g h is a ll o c u tion

on the day of sentenc ing. The court returne d Flowe rs’s mot ion paper s to him by mail, along with

a copy of the order

. Howeve r, Flowe rs never rec eived the letter, which was returne d to the court as undelivera

ble. At sentenc ing, the Gover nment moved for a downwar d d ep ar t u re p ursuant to U.S.S.G. § 5K1.1, on g rounds that Flowe rs provid ed substantial assistance to the investigation. The district
court g rante d the motion and reduc ed Flowe rs’s offe nse level to 28, resulting in a Guidelines rang e

2of 13 0 t o 162 months. The court sentenc ed Flowe rs within that rang e, to 144 months of

imprisonment. Flowe rs raised no objection at the hear ing, either throug h his attorney or i n h i s allocution. On appea l, Flowe rs challeng es the sentenc e’s proce dural rea sonablene ss and arg ues that the district c ourt abused its discr etion by failing to c onsider sever al mitigating fac tors that wer e raised in his rejecte d pro se motion. II Flowe rs claims that his sentenc e is proce durally unrea sonable beca use the district court err ed in calc ulating the advisory Guidelines rang e and d i d n ot fully assess the value of his substantial assistance to the Gover

nment. The Gover

nment asser

ts that Flowe rs’s objections are waived under the plea ag ree ment beca use he failed to raise them at sentenc ing. Flowe rs responds that his objections wer e prese rved in ear lier court filings, notably in his objections to the PSR

. Alterna tively , he ar g ues that the wa iver should not be enf orce d beca

use his trial counsel wa s ineffe ctive. A A defe ndant 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. Flemin g , 2 3 9 F.3d 761, 763-64 (6th Cir. 2001). This court revie ws de novo whether a defe ndant validly waived his appellate rig hts. United States v. Smith , 344 F.3d 479, 483 ( 6th Cir. 2003). Flowe rs arg ues that the plea ag ree ment’s waiver provision does not apply beca use the g rounds on which he appea ls his sentenc e we re pr eser ved in var ious court filing s made be fore the
actua l sentenc ing. The PSR indeed confirms that both Flowe rs and his attorney lodge d objections:

3On J une 17, 200 8 , [ Flowe rs’s attorney ] submitt ed a written response to the [P SR]

detailing sever al objections or reque sted chang es to the repor t. This office r has also rec ei v e d n u me r o u s le tt e r s f

r o m Mr. Flowe rs reg arding additional objections he would like noted in the [P SR]

. Thi s office r has discussed the objections with defe nse counsel a nd two objections rema in unresolved. Addendum to PSR 1. The first objection to which the Addendum ref ers is unrela ted to this appea l. Howeve r, the second objection conce rns whether the PSR corr ectly deter mined that Flowe rs serve d

a 115-day sentenc e for his marijuana -possession conviction, resulting in two criminal-history points being added to his total. Id. at 2. Although co u n s el raised the objection in response to the PSR , this was not enoug h to prese rve the issue on appea l be cause the plea a g ree ment’s plain terms state tha t Flower s may only appea l his sentenc e on g rounds “pres er v ed at sentenc ing .” Plea Ag ree ment 3, at ¶ 5B (empha sis added). C o u n sel’s sentenc ing memorandum, filed afte r the PSR addendum, opened by stating “The re a re no unresolved objections to the Presentenc e Report,” R. 36, at 1, and counsel raised no objection during sentenc ing. During allocution, Flowe rs spoke at some leng th but did not object to the criminal-history scoring

. Thus, Flowe rs ’s objection was not prese rved at sentenc ing and the appellate -wa iver provision applies. 1

The court notes that Flowe rs has offe red a rea sonable, plausible explanation for his position 1 that he ser

ved only 27 day s for his ma

rijuana- possession of

fense

. The PSR indi cate s that Flowe rs was arr ested on Fe bruar

y 3, 1998, in possession of sever al marijuana “bag g ies.” At the time, police discovere d that Flowe rs had violated probation for a prior offe nse and that there was a war rant for his a rre st. Flowe rs pleade d g uilty to violating probation and was sentenc ed to 90 day s, with c redit for four day s previously

serve d; he beg an his sentenc e on Fe bruar y 4. On M ay 28, 1998, Flowe rs pleade d g uilty

to possessing mar ijuana, the of fense that led to his arre st on Febr uary 3. Ba sed on these dates, t h e P SR rea soned that Flowe rs completed his probation-violation sentenc e on May 28, the same day he was sentenc ed in the drug case . The PSR further deduce d that Flowe rs rec eived 115 day s for the drug offe nse, wit h cr ed i t fo r 86 day s serve d for violating p ro bation. There fore , the PSR assessed two criminal-history points for the drug conviction, see U.S.S.G. § 4A1.1(b)- (c) (a t t ri b u t ing two points to prior sentenc es over 60 day s and one point to 4Flowe rs’s rema ining challeng es are s i m i l ar l y unprese rved. Flowe rs did not object at

sentenc ing to t h e d i strict court’s failure to consider the arg ument, raised in his pro se motion for downwar d depar

ture, that his sentenc e should be reduc ed beca use of the 100:1 cra ck-ve rsus-powde r cocai n e d i s p ar i ty

. Neither did Flowe rs arg ue that the court failed to fully assess the value of his substantial assistance when rul in g o n th e G o v e r n me nt’s downwar d-depa

rture motion under § 5K1.1. Thus, these a

rg uments are also waive d. B Flowe rs ar g ues that the plea ag ree ment’s waive r provision should not be enfor ced be cause his trial counsel was ineffe ctive by failing to raise the criminal history issue at sentenc ing. A waiver of appe al rig hts may

be cha lleng ed on the g rounds that it w as the product of ine ffe ctive assistanc e of counsel. See In re Acosta , 480 F.3d 421, 422 n.2 (6th Cir. 2007); United St ates v. Payton , 380 F. App’x 509, 513 (6th Cir. 2010); United St ates v. A t ki n s o n , 354 F. App’x 250, 252-54 (6th Cir.

lesser sentenc es), resulting in a total of ten points and placing Flowe rs in criminal-history cate g ory V. Flowe rs disputes the P S R ’s ca lculations. I n particula r, he asser

ts that he completed his probation-violation sentenc e on May 1, 1998. The court notes that an 86-day sentenc e beg inning on Fe bruar y 4, 1998, would indeed have ended o n M ay 1, not May 28. Flowe rs arg ues that his probation-violation sente n c e w as fully discharg ed when he was sentenc ed in the drug case ; there fore , the court could not have order ed the two sentenc es to run concur rently

. Flowe rs conclude s that his drug -possession sentenc e ran 27 day s, fr o m M ay 1 to May 28, 1998. I f this is true, Flowe rs’s marijuana conviction was worth only one point, see § 4A1.1(c ), and there fore his corr ect criminalhistory cate g ory was I V. (The court notes that there is some confusion as to wh en Flowers completed his drug sentenc e: in the same para g raph, the PSR states that he was rele ased on May 28 and J une 17, 1998. See PSR 9-10, at ¶ 42. I f so, Flowe rs’s marijuana sentenc e would have been 47 day s, but still worth only one criminal-history point under § 4A.1.1). Flowe rs also provides evidenc e that he requested that stat e au t h o ri ties provide him with the s entenc ing transcr ipt and P SR for his drug offe nse, but was told that neither was available. See Def

.’s Supp. Br. E x . A. None of these claims wer e prese nted to the district court at sentenc ing and thus the issue was not adequa

tely prese rved for purposes of this appeal. F lowers’ s ineffe ctive-a ssistance c laim must be ra ised in a post-convic tion moti on under 28 U .S.C. § 2255. See infra Part I I .B. 52009). Given Flowe rs’s eff orts and communications with the probation office r and Michig an courts, and his plausible acc ount of how much time w as proper ly attributable to the marijuana offe nse, he

m ay very well have contemplated that trial counsel would raise this objection at sentenc ing. Howeve r, the rec ord is not ade quately develope d on this issue. Flowe rs’s claim of ineffe ctive assistance of counsel is more ap p ro p ri ately raised in a post-conviction motion under 28 U.S.C. § 2255. Un i t ed S t a t es v. McCarty , 628 F.3d 284, 295-96 (6th Cir. 2010) (quoting United States v. Long , 190 F.3d 471, 478 (6th Cir. 1999) (“We g ener ally will not revie w an ineffe ctive assistance of counsel claim on direc t appea l, as su ch claims are more appropr iately raised in a post-conviction motion under [] § 2255 when a n adequate re cord ma

y be deve loped on the issue.”) ). C Flowe rs’s final arg ument is that the district court abused its discretion in reje cting his pro se motion for a downwar d depar ture or a varia

nce and attache d letter of allocution, which the district court mailed back to him, but they wer e returned to the di strict court as undelivera ble. Assuming argue ndo that this claim is not barr ed by the plea ag ree ment, it fails nonetheless. Alt h o u gh a criminal defe ndant has a constitutionally protec ted rig ht to prese nt his own defe nse in addition to a const it utionally protec ted rig ht to be repr esente d by counsel, he has no rig ht to hy brid repr esenta

tion. See United States v. Cromer , 389 F.3d 662, 680 (6th Cir. 2004); 28 U.S.C. § 1654 (“I n all courts of the United States the parties may plead and conduct their own case s persona lly or by counsel

. . . .”). This court has declined to consider pro se arg uments wher e the defe ndant is repr esente d by counsel, United States v. Martinez , 588 F.3d 301, 328 ( 6th Cir. 2009) (citing United States v. Howton , 260 F. App’x 813, 819 (6th Cir. 2008)), as have district cour t s wi t h i n this circ uit, see United States v. Degroat , No. 97-CR-20 0 0 4 -DT- 1, 2009 WL 891699, at *1 (E.D. Mich. Mar. 31, 2009) (striking

6defe ndant’s pro se motion, noting “now that Def endant is repr esente d by counsel, all filings must be made by

the attorne y

of re cord.” ). Flowe rs arg ues that under Fe d. R. Crim. P. 32 he had the absolute rig ht to speak or prese nt any information to mitigate the sentenc e, and that the re jection of his allocution letter w as thus an abuse of discretion that require s rese ntencing

. I n addition, Flowe rs relies on 18 U.S.C. § 3661, which provides that “[n] o limit ation shall be place d on the information conce rning the background, char acte r, and c onduct of a person c onvicted of an offe nse which a c ourt of the United States ma y

rec eive and consider for the purpo se of imposing an appropr iate sentenc e.” Howeve r, Flowe rs’s rig ht of allocution was not curta iled; he was permitted to addre ss the court at sentenc ing, and would have been permitted to p re s en t t h e l et t er at that time had he attempted to do so. Although it is reg rettable that the district court did not have Flowe rs’s pro se motion and allocution letter bef ore it at sentenc ing, we find no abuse of discretion in the mag istrate judge ’s having reje cted the motion beca use F lowers wa s repr esente d by counsel a t the time.

V For the fore g oing rea sons, we dismiss Flowe rs’s appea l. Howeve r, Flowe rs may pursue his ineffe ctive-a ssistance-of

-counse l claim by way of a post-conviction motion under 28 U.S.C. § 2255, which is expressly

permitted by

his plea ag ree ment.

7