RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0276p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

K EVIN C LARDY , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 17-5094

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:09-cr-00122-1—William J. Haynes, Jr., District Judge.
Decided and Filed: December 5, 2017
Before: SILER, KETHLEDGE, and THAPAR, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Ronald C. Small, Andrew C. Brandon, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. W illiam L. Deneke, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.

_________________ OPINION

_________________ PER CURIAM. Kevin Clardy ar gues that he has not waived the right to challenge his sentence under 18 U.S.C. § 3582(c), despite explicitly waiving that right in his plea agreement. We have rejected this argument multiple times, albeit in unpublished opinions. The district court likewise rejected it he re. We affirm. 

### >No. 17-5094 United States v. Clardy Page 2

In 2009, Clardy pled guilty to possessing a fire arm as a convicted felon and to possessing over 50 grams of crack cocaine with the intent to distribute it. He agreed neither to appeal his eventual sentence nor to challenge it under various statutes. In part icular, the relevant section of his plea agreement (titled “Waive r of Appellate Rights” ) states that Clardy “knowingly waives the right to challenge the senten ce imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c).”
After ensuring that Clardy understood the agre ement and had signed it of his own will, the district court accepted his plea and sentenced him to 144 months in prison. The Sentencing
Commission thereafter amended the Guidelines to reduce the offense levels for drug crimes. Clardy then moved under § 3582(c)(2), which allows a court to reduce a sentence that was based on a Guidelines range that has since been lowered, to have those reductions applied to him. The district court denied the motion, reasoning that Clardy ha d “expressly waived hi s right to file a § 3582(c) motion.” Clardy now appeals.
We review de novo whether Clardy has waiv ed the right to file a § 3582(c) motion. See United States v. Griffin , 854 F.3d 911, 914 (6th Cir. 2017). A defendant can waive “any right, even a constitutional right,” in a plea agreement. Id . (internal quotation marks omitted). Clardy does not dispute that he signed his agreement knowingly and voluntar ily. Thus the only question is whether the agreement itself waives the right he now seeks to assert. Id

. On that point the agreement could hardly be more clear. It generally bars Clardy from “challeng[ing] the sentence imposed in any collate ral attack[.]” And it specifically forbids him from challenging the sentence under three statutes, one of which is § 3582(c). That the parties did not list every type of cha llenge that the waiver covers—pr eferring instead the shorthand reference to challenges “including, but not limited to,” motions under § 2255, § 2241, and § 3582(c)—makes their intent as to those motions a ll the more clear. Thus, per the plain terms of the plea agreement, Clardy has waived his right to file a § 3582(c) motion.
Clardy argues that the waiver is ambiguous as to § 3582(c) motions, for three reasons. First, he argues that, because the waiver is titled “Waiver of Appellate Rights” and a § 3582(c) motion is not an appeal, the waiver does not clear ly cover § 3582(c) motions. That might be trueNo. 17-5094 United States v. Clardy Page 3

of a provision that did not menti on § 3582(c) motions specifically. Cf. United States v. Goodloe , 388 F. App’x 500, 503 (6th Cir. 2010). But this provision does. And the specific terms within the provision, not the general title above it, control its reach. See 11 Williston on Contracts §§ 32:10, 32:15 (4th ed. 2016). For good reason: the title al one says little about what the parties intended the provision to cover; the terms they us ed to express that intent, on the other hand, say everything. And those terms leave no doubt that the waiver covers § 3582(c) motions.
Second, Clardy argues that the waiver is am biguous because it refers to a § 3582(c) motion as a collateral attack. Specifically, Clar dy waived his right to “any collateral attack, including . . . a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c).” Yet a collateral att ack is normally an attempt to overturn a sentence by filing a new lawsuit rather than by a direct appeal. Motions under § 2255 and § 2241—both of which allow courts to overturn sentences—are commonly refe rred to as collateral attacks; motions under § 3582(c)—which merely allows courts to reduce sentences—are not. See Goodloe , 388 F. App’x at 503.
Yet Clardy’s conclusion does not follow. Inst ead this argument suffers the same flaw as his first, namely that the provision’s intent is too clear to ignore. As we have held multiple times, “[w]hether or not the waiv er properly classifie[s] § 3582(c) motions is irrelevant” when a defendant expressly waives the ri ght to bring a § 3582(c) motion. United States v. Bryant , 663 F. App’x 420, 422 (6th Cir. 2016); see also United States v. Shelton , 673 F. App’x 524, 525 (6th Cir. 2017); United States v. Ellison , 664 F. App’x 507, 509 (6th Cir. 2016). Suffice it to add here that—especially to readers unfamiliar with th e common usage of legal terms (such as many criminal defendants)—references to specific statut es more clearly explain an agreement’s scope
than do terms like “collateral att ack.” So this argument fails.
Finally, Clardy argues that the waiver is ambiguous because § 3582(c)(2)—the specific provision he invokes—allows th e district court to reduce se ntences “on its own motion.” 18 U.S.C. § 3582(c)(2). Clardy argues that he coul d not waive a power that belongs to the court. But not even Clardy accepts this argument: elsewh ere he suggests that we construe the waiver to cover only a subset of § 3582(c), namely § 3582(c)(1)(B); yet that provision also allows the court to modify sentences of its own accord. That a defendant waives the ri ght to file a § 3582(c)No. 17-5094 United States v. Clardy Page 4

motion does not strip the court of any power to gran t relief under that secti on. Instead the waiver merely denies the defendant the right to seek it. And Clardy has waived that right here.
In summary, where a waiver provision in a valid plea agreement sp ecifically forbids a defendant from challenging his sentence under § 3582(c), he cannot challe nge his sentence under § 3582(c).

The district court’s order is affirmed.