NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0784n.06 No. 10-5358 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. ANTHO NY KEN

NEDY, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN NESSEE

Be fore : CL AY and SUTTO N, Circuit J udg es; RI CE, District J udg e. * SUTTON, Circuit Judge
. Anthony Kenne dy pled g uilty afte r being misinformed about the maxi mum sentenc e for which he was elig ible. Be cause Kenne dy does n o t cl ai m h e would have proce eded to trial but for the err or and does not even make such a claim now, we reje ct this challeng e to his plea as we ll as two other cha lleng es to his sentence
. I
. A federa l grand jury char g ed Anthony Kenne dy and eight other people in connec tion with
a conspi rac y to produce and transfe r false identification documents and counter feit secur ities. Kenne dy pled g uilty to the char g es. The plea ag ree ment rec ited the parties’ understanding that the
m ax imum prison term for the conspirac y char g e was five y ear s and the maxi mum term fo r t h e The Honor able Walter H . Rice, United States District Judge f or the Southern District of * Ohio, sitti ng by

desig nation.No. 10-5358

United States v. Kenne dy underly ing substantive offe nse (a violation of 18 U. S
. C
. § 1 0 28(a) (3)) was fiftee n y ear s. At Kenne dy ’s p l ea h earing , the judge told him the same thing. Procee ding on this understanding , Kenne dy pled g uilty
. At Kenne dy ’s sentenc ing hear ing, the district court announce d Kenne dy ’s below-g uidelines sentenc e before g iving Kenne dy an o p p o rtunity to speak or prese nt mitigation materia l, which is inconsistent with Criminal Rule 32. See Fe d. R. Crim. Pro. 32(i)(4) (A)( ii ). Recog nizi ng his mistake, the district c ourt g ave Kenne dy an opportunity to a ddress the court befor e adjourning the hear ing. Kenne d y t o l d t h e co u rt that it had been “more than fair with the sentenc e that [i t had] imposed. That’s better than I could have asked for.” Rather than challeng e his sentenc e, Kenne dy explained that he wanted to clar ify some of the fac ts rec ounted in the Pre-Sentenc e Report. The judge listened and incorpora

ted at l ea s t some of Kenne dy ’s statements into the rec ord but did not chang e the sentenc e.
I I
. Kenne dy first challeng es the voluntariness of his g uilty plea. See Brady v. United States , 397 U.S. 742, 747 n.4 (1970). He did not raise this challeng e in the district court and conce des we may undo the pl ea only if plain err or occurre d. See U nited States v. Vonn , 535 U.S. 55, 73–74 (2002); Br
. at 22. That req u i re s Ke n n edy to establish (1) an err or (2) that was “obvious or clea r” and (3) “af fec ted [hi s] substantial rig hts.” United States v. Hou s t o n , 529 F.3d 743, 750 (6th Cir. 2008).

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United States v. Kenne dy Even an err or that meets these require ments does n o t war rant relief unless it undermines “the fairne ss, integr ity , or public re putation of the judicial proc eeding s.” Id.
Kenne dy satisfies the first two prong s. The parties ag ree that they wer e mutually mistaken about the maxi mum sentenc e for a § 1028(a) (3) violation, an d cl ea rl y so. So do we: the corr ect maxi mum is five y ear s, not fifteen. See 18 U.S.C. § 1028(b)(2)( B)
. Kenne dy comes up short in meeting the third require ment, establishing the err or aff ecte d his substantial rig hts. I n the contex t of a voluntariness challeng e, the defenda nt must show that, “but for the err or, [he] would not have enter ed the plea.” United States v. Dominguez Benitez , 542 U.S. 74, 83 (2004). The key problem is that, while Kenne dy claims to want to withdraw his plea, he fails to maintain that he would not have pled g uilty in the first place or even that he would not plead g uilty today if we rema

nded the case to the district court. By definition, that means Kenne dy cannot show the er ror made a diffe renc e to him. See id. at 84–85.
Kenne dy separ ately

raises two c halleng es to his se ntence
. The g overnme nt insists the first challeng e—over whether the district court corr ectly calc ulated Kenne dy ’s g uidelines ra ng e—is barr ed by the plea ag ree ment, which waives any ri gh t t o appeal a within- or below-g uidelines
s en t ence like this one. But, as shown, there is rea son to worry that this plea was not knowi n gl y entered. See United St ates v. Sw anberg , 370 F.3d 662, 625 (6th Cir. 2004). We need not resolve the point, howeve r, beca

use even if Kenne dy reta ins the rig ht to asser t these challeng es, they fail on

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United States v. Kenne dy t h e m er i t s . See United States v. Caruthers , 458 F.3d 459, 472 n.6 (6th Cir. 2006) (holding that appea l waiver s do not deprive the c ourt of subjec t matter jurisdiction).
The district court corr ectly calc ulated Kenne dy ’s g uidelines rang e. Kenne dy ’s prior convictions for possession of marijuana and burg lary tools do not fall within U.S.S.G. § 4A1.2(c )’s list of excludable petty offe nses. Nor are they simil ar to any of the offe nses listed there
. The district court proper ly considere d those convictions in calc ulating his criminal history
. Kenne dy also arg ues that the district court err ed in assig ning him three criminal history points in connec tion with a statelaw forg ery conviction ar ising out of the sa me conduc t at issue here . Yet the district cour t did not assig n him the criminal history points to which he objects. Although the points wer e o ri gi n al ly included in his Pre-Sentenc e Report, the probation office r remove d the proposed points afte r Kenne dy objected to them in his sentenc ing memorandum. See R
. 4 42 at 8–9, Pag eI D 2149–50; PSR at 20 (a ssigning

no points in connection with challeng ed for g ery conviction).
Kenne dy ’s next challeng e to the sente ncing hear ing—tha t the district court failed t o invite Kenne dy to speak befor e it announce d his sentenc e—wa s harmles s . Fe d
. R
. Crim. Pro. 52. The court promptly

rec og nized the e rror and g ave him a chanc e to addr ess the cour t before the hea

ring ended, even acc ommodating Kenne dy ’s reque st to modify the Pre-Sentenc e Report. Kenne dy acknow ledg ed that the sentenc e was “better than I could have asked for,” torpedoing any claim that he would have rec eived a lower sentenc e had he been allowed to speak first. R. 477 at 62, Pag eI D 2779.

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United States v. Kenne dy I I I
. For these re asons, we a ffirm.

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