NOT RECOMMENDED FOR PUBLICATION File Name: 16a0602n.06 Nos. 15

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UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. ISHMAEL WAHID ; BRIAN SINGLETON , Defendants

- Appellants

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: BATCHELDER, MOORE, and McKEAGUE, Circuit Judges. ALICE M. BATCHELDER , Circuit Judge . A federal grand jury indicted Ishmael Wahid and Brian Singleton , along with other co

- conspirators, o n various drug charges. It charged Wahid with conspiracy to possess with intent to distribute and to distribute heroin in violation of 21 U

. S

. C

. § § 846 and 84l(a)(1) and (b)(1)(B)

. It charged Singleton with conspiracy to possess with intent to distribute and to distribute heroin, cocaine base (crack) and cocaine in violation of 21 U

. S

. C

. §§ 846 and 841( a)(l), (b)(l)(A), and (b)(1)(B), and po ssession with intent to distribute heroin in violation of 21 U

. S

. C

. §§ 841(a)(l) and (b)(l)(B). It charged both with knowingly or intentionally using any communication facility in co mmitting a felony in violation of 21 U

. S

. C

. § 843(b).Nos. 15

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- Wahid and Singleto n each entered into a written plea agreement , plead ing guilty to

c onspiracy to p ossess with i ntent to d istribute and d istribution of heroin

. In his plea agreement, Wahid retained the right to appeal the district court’s denial of his motion to suppress and the court’s determination of his C riminal History C ategory ; he waived all other appeal rights

. Singleton waived his rights to appeal , including the right to appeal his s entence. His waiver explicitly did not, however , waive his right to claim ineffective assistance of counsel. Each appea ls his conviction and sentence. F or t he following reasons, we affirm. I. From May 2010 to June 2014 , Wahid, Singleton, and others conspired to deal drugs and performed various overt acts in furtherance of that conspiracy

. In late 2013, the government obtained a n authorized wiretap on the phone of Mark Makupson, another member of the conspiracy . As a result of that wiretap, the government obtained Wahid’s cell phone number and

conve rsations between Makupson and Wahid, and Makupson and Singleton. Police officers identified and apprehended Wahid after they traced his location using his cell phone number

. Wahid moved to suppress the evidence obtained as a result of their tracking his cell phone ; the

cou rt held a hearing on the motion and denied it. Wahid then plea ded guilty. At sentencing, the district court determined that Wahid was a career offender and calculated his offense level at 30, and his C riminal H istory Category as VI

. T he court imposed a sentence of 120 months’ imprisonment

. During the conspiracy, Singleton possessed loaded firearms, 37.11 grams of heroin , and 0.15 grams of cocaine powder. Singleton’s PSR calculated his base level offense at 30, added a
two

- point enhancement for possession of a firearm , and a three

- point r eduction for acceptance of responsibility. And although his written plea agreement recommended against a two

- pointNos. 15

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- enhancement for possession of a firearm , the court disagreed and included the two

- level enhancement. The court found his total level offense to be 29 with a Criminal History C ategory of V , and imposed a sentence of 140 months’ imprisonment. I I. Wahid reserved in his plea agreement the right to appeal the court’s de nial of his motion to suppress. He argues that the government’s use of the evidence obtained from his cell site data violat ed his Fourth Amendment rights because he had an expectation of privacy in his location

. It is long

- settled that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. As a result, a defendant seeking to suppress evidence must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable. United States v. Noble , 762 F.3d 509, 526 (6th Cir. 2014) (internal quotations and citations omitted). W e have held that there is no “reasonable expectation of privacy in the data given off by [a] cell phone.” United States v. Skinner , 690 F.3d 772, 777 (6th Cir. 2012) ; se e also United States v. Carpenter , 819 F.3d 880, 886 (6th Cir. 2016) (holding that the government ’ s collection of business records containing cell

- site data was not a se arch under the Fourth Amend ment). Several of our sister circuits agree. See United States v. Graham , 824 F.3d 421, 427

- 29 (4th Cir. 2016) (en banc); United States v. Davis , 785 F.3d 498, 513 (11th Cir. 2015) (en banc); In re Application of U.S. for Historical Cell Site Data , 724 F.3d 600, 615 (5th Cir. 2013). We do no t have the authority to revisit the question of privacy in cell site data , se e United States v. Yoon , 398 F.3d 802, 806 (6th Cir. 2005) (“The prior decision [of a Sixth Circuit panel] remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”) (internalNos. 15

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- quotatio n marks and citation omitted), an d i n any event, the government in this case also obtained a warrant to collect and examine radio signals emitted by his phone

. The government did not violate W ahid’s Fourth Amendment rights by collecting or using that data

. III . To designate Wahid a career offender, t he district court relied on a 2003 conviction for possession of cocaine and having a weapon under disability , and a 1995 conviction for conspiracy to distribute and possess with intent to distribute cocaine. Wahid reserved the right to

a ppeal the court’s determination of his Criminal History Category , and now argues that his 2003 conviction was void ed and should not have been included in the guidelines calculus pursuant to U.S.S.G. § 4A1.2

. “This Court reviews a district court’s factual findings concerning a defendant’s criminal history category, which must be based on a preponderance of the evidence, under the clearly erroneous standard of review.” United States v. Adkins , 729 F.3d 559, 569 (6th Cir. 2013) (internal quotation marks omit ted)

. Wahid’s claim is meritless. The Ohi o Revised Code requires the court to impose a period of post

- release control at the sentencing hearing when sentencing a defendant. When the court fai ls to do so (or does so only in a journal entry without mentioning the fact at the sentencing hearing), and where the defendant had already served his sentence, the defendant is not entitled to resentencing. State v. Bezak , 868 N.E.2d 961, 964 ( Ohio 2007) , overruled in part by State v. Fischer , 942 N.E.2d 332 ( Ohio 2009). T he Summit County Common Pleas Court voided Wahid’s sentence of post

- release control, stating : Where the sentence contains improper notification of post release control, the Supreme Court of Ohio has declared that the s entence must be conside red void

. In the instant case, defendant is not subject to re

- sentencing because he has completed serving the incarceration portion of his sentence. As a result, the determination that his sentence is void means that defendant cannot now beNos. 15

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- sentenced to a period of post release control. Pursuant to Bezak , this court hereby declares that defendant has fully completed his sentence and is not subject to post release control. To the extent the Adult Parole Authority has placed defendant on post release cont rol, that placement is invalid and must be terminated forthwith. (internal citation omitted). The Ohio Supreme C ourt later stated tha t “[i] t is only the post

release

- control aspect of the sentence that is void and that must be rectified. The remainder of the sentence .

. . remains valid under the principles of res judicata. ” Fischer , 942 N.E.2d at 339

. Clearly, Wahid’s voided post

- release control sentence does not affect the underlying conviction, and, therefore, it does not change the o utcome of the guidelines calculation

. T he district cou rt did not err in calculating Wahid’s C riminal H istory Category and classifying him as a career offender. I V . Singleton argues that he received ineffective assistance of counsel because his counsel did not tell him that he might receive a two level enhancement for possession of a weapon. Although t he PSR included an additional two

- point enhancement for possession of a firearm , Singleton’s written plea agreement did not include the two

- le vel enhancement

. His agreement did state, however, that its recommendations would not bind the court

. Contrary to Singleton ’s assertion, the record does not support his claim of ineffective assistance of coun sel , and in any event, he suffered no prejudic e . “Ineffective assistance of counsel claims are mixed questions of law and fact, which we review de novo on appeal.” Mallett v. United States , 334 F.3d 491, 497 (6th Cir. 2003). In order to prevail on his ineffective assistance of counsel claim,
F irst, the defendant must show that coun sel’s performance was deficient [ such that ] counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. ThisNos. 15

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- requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington , 4 66 U.S. 668, 687 (1984). T o show prejudice “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694. Singleton appears to argue that he would not have pleaded guilty had his counsel told him that the court might impose a two

- level enhancement , thus increasing his guidelines range from 120

- 150 months to 140

- 175. However, the plea agreement stated explicitly that the sentencing recommendations were not binding on the court. Furthermore, Singleton’s 140

- month sentence falls within the range contemplated in the recommended

sen tencing range

. V . Singleton also appeals his sentence , but he waived that right in his written plea agreement [ R. 441, at 2102 ] and “ [a] defendant in a criminal case may waive ‘any right, even a constitutional right,’ by means of a plea agreement.” United States v. Fleming , 239 F.3d 761, 763

- 64 (6th Cir. 2001) (quoting United States v. Ashe , 47 F.3d 770, 775

- 76 (6th Cir. 1995)). “Criminal defendants may waive their right to appeal as part of a plea agreement so long as the waiver is made knowingly a nd voluntarily.” United States v. Swanberg , 370 F.3d 622, 62 5 (6th Cir. 2004). “This Court reviews the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo.” Id. at 62 6 (quoting United States v. Smith , 344 F.3d 479, 483 (6th Cir. 2003). Singleton acknowledged under oath at the plea hearing that he: (1) had discussed this case and this plea agreement in detail with his counsel , who advised him of his c onstitutional andNos. 15

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- other trial and appeal rights; (2) had sufficient time and opportunity to discuss all aspects of the case in detail with counsel; (3) fully understood the plea agreement; (4) was satisfied with the legal counsel and assistance provided by his attorney; and (5) had entered into the agreement voluntarily. Singleton provides no evidence to call into question his knowing and voluntary waiver , a nd he has therefore waived his right to appeal his sentence. V I. For the foregoing reasons, we AF FIRM Wahid and Singleton’s conviction s and
sentence s .Nos. 15

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- KAREN NELSON MOORE, Circuit Judge, dissenting in part. I dissent from Part IV of the opinion. I would not resolve the ineffective

- assistance

- of

- counsel claim on this record. Generally, we do not review such claims on direct appeal where the record is not fully developed. See United States v. Penaloza , 648 F. App’x 508, 529 (6th Cir. 2016). Here the record is thin regarding why the facts underlying the firearm enhancement were included in Singleton’s plea agreement when the sentencing

- related stipulations did not contemplate application of a firearm enhanceme nt. The ineffective

- assistance issue should be resolved in a 28 U.S.C. § 2255 proceeding rather than on direct appeal.