NOT RECOMMENDED FOR PUBLICATION File Name: 21a0030n.06
No. 19

- 2236
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. NAKEYSHA WISDOM
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: BOGGS, SUTTON , and NALBANDIAN , Circuit Judges BOGGS, C ircuit Judge

. Defendant Nakeysha Wisdom appeals her 70

- month sentence for conspiracy to commit health

- care fraud. A lthough her plea agreement contained an appe al waiver, Wisdom argues that the district court violated Federal Rule of Criminal Procedure 11(b)(1)(N) by
fai ling to properly explain the waiver and confir m she understood it

. Because the plea agreement ’s

text is clear and the district court’s explanation was comprehensive , Wisdom’s waiver of her appellate rights is valid

. W e therefore dismiss her appeal. We review de novo whether a defendant waived her ap pellate rights in a valid plea agreement. United States v. Murdock , 398 F.3d 491, 496 (6th Cir. 2005). If a defendant did not object at her plea hearing, we review for plain error her later challenge that the plea colloquy violated Rule 11(b)(1)(N). Ibid. A defendant may waive any right, including the right to appeal, through a valid plea agreement. See United States v. Toth , 668 F.3d 374, 377

– 78 (6th Cir. 2012). A n appeal waiver isNo. 19

- 2236 , United States v. Wisdom

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enfor ceable if it was “knowing and voluntary.” I bid

. To ensure that a defendant knows what rights she is waiving , “ the court must inform the defendant of, and determine that the defendant understands,

. . . the terms of any plea

- agreement provision waiving th e right to appeal or to collaterally attack the sentence .” Fed. R. Crim. P. 11(b)(1)(N). If a defendant waives her appellate rights, she may challenge the waiver “on the grounds that it was not knowing and voluntary, was not taken in compliance with Fed. R. Crim. P. 11, or was the product of ineffective assistance of counsel.” United States v. Detloff , 794 F.3d 588, 592 (6th Cir. 2015) (quoting United States v. Atkinson , 354 F

. App ’ x 250, 252 (6th Cir. 2009) ). If a district court misstates the scope of an appellate waiver, it fails to comply with Rule 11(b)(1)(N)

. See United States v. Melvin , 557 F. App’x 390, 393

– 96 (6th Cir. 2013). If there is an initial correct
statement of the waiver, a second , misstated explan ation that expands the permissible bases for appeal may inadvertently create an exception to the written waiver

. See Detloff , 794 F.3d at 593. Here, Wisdom’s plea agreement contained a n unambiguous waiver of her right to appeal
her sentence on any grounds , unless the sentence exceeded 87 months

. At her plea hearing, Wisdom stated that she reviewed the terms of the agreement with her attorney and voluntarily accepted them. The district court genera lly summarized the waiver and explained that Wisdom could not appeal a sentence “ contemplated ” by the plea agreement, meaning at or below 87
months

. Wisdom confirmed that she understood.
Wisdom now argues that the district court failed to ensure t h at she understood the appeal
waiver because it made an ambiguous statement. The court explained that , after it heard arguments regarding Wisdom’s proper G uidelines range , it would come to its own decision that could be higher than what the parties agreed upon. It explained that if “it’s a tougher sentence than [she]No. 19

- 2236 , United States v. Wisdom

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had contemplated,” she “probably do[es] have the right then to appeal the sentence calculation and
so fort h because it’s beyond what [she] contemplated .

. . .” Yet this statement is only ambiguous when read in a vacuum

. Earlier in the plea colloquy , the district court clearly referred to the S entencing G uidelines range in Wisdom’s plea agreement
as her “ cont emplated ” sentence

. The court explained that she could not appeal a “sentence that is as contemplated here, and there’s a specific number of months, 87 months that’s identified here.”
The court continued that Wisdom could not appeal a sentence “that is a t or below [her] contemplated sentencing range,” t o which the prosecutor confirmed “87 is the correct number

. . . . ” Then the court again stated that she could not appeal a “sentence that is contemplated by [her] Rule 11 agreement , it ’s already been noted, it ’ s been mentioned, and methodology has been
identified. ” We have previously held that a district court can expand a defendant’s right to appeal beyond the limited circumstances allowed by the waiver in the written plea agreement if , during the plea colloquy , it follows an initially accurate explanation with a contradictory one
. See , e.g. , Detloff , 794 F.3d at 593 . But here , Wisdom confirmed her understanding of an initial accurate

statement , and there is nothing in the record suggesting that any subsequent statement interfere d with that understanding

. At most, there was a n additional ambiguously worded reiteration.
Because the district court did not misstate Wisdom’s appellate rights or create an exception to her appeal waive r, she waived her right to contest her 70

- month sentence on appeal

. Accordingly, we DI S MISS Wisdom’s appeal

.