UNITED STATES of America, Plaintiff-Appellee, v. Jumal George JONES, Defendant-Appellant, 569 F.3d 569

MOORE, J., delivered the opinion of the court, in which SUTTON, J., joined. BOGGS, C.J. (pp. 574-76), delivered a separate opinion concurring in part and dissenting in part. OPINION KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Jumal George Jones (“Jones”) pleaded guilty to one count of possession with intent to distribute over fifty grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and one count of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c).

He now appeals the ten-year mandatory-minimum sentence imposed for possession with intent to distribute over fifty grams of cocaine base. Jones argues that the ten-year sentence is so grossly disproportionate as applied to him that it amounts to cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Because we conclude that the ten-year sentence does not offend the “narrow proportionality principle” of Harmelin v. Michigan, 501 U.S. 957, 996-1009, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring), we AFFIRM Jones’s sentence. I.

BACKGROUND On November 1, 1996, officers from the Lansing, Michigan Police Department executed a search warrant at a residence in Lansing. Officers found Jones and six others inside, and a search of the residence recovered crack pipes, a digital scale, and packaging material. After Jones told officers that he had a gun in his pocket, a search of Jones recovered a loaded semiautomatic pistol with an obliterated serial number, $600 in cash, and the keys to a 1993 GMC minivan. During a search of the minivan, officers found a digital scale and 91.95 grams of crack cocaine.

After being informed of his Miranda rights, Jones admitted that he and his younger brother had driven the minivan from Chicago to Lansing that day. He said that he had taken the gun, which he purchased on the street in Chicago, into the residence for protection because he believed it to be a crack house. Two witnesses told officers that they had purchased crack cocaine at the residence and understood Jones to be the residence’s main supplier of crack cocaine.

Although Jones denied any knowledge of the crack cocaine found in the minivan at the time, he later admitted that this had been his fifth trip from Chicago to Lansing to sell crack cocaine. After purchasing crack cocaine in Chicago, Jones traveled to Lansing to sell it and had made a total of some $12,500 in crack-cocaine sales. Presentence Investigation Report (“PSR”) at 4-6.

On August 9, 2007, a grand jury returned a three-count indictment charging Jones in count one with possession with intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(iii), in count two with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and in count three with possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c). On December 5, 2007, Jones pleaded guilty to counts one and three pursuant to a written plea agreement.

Under the plea agreement, the government agreed to dismiss count two and not to file supplementary charges pursuant to 21 U.S.C. §§ 841(b)(1)(A)(iii) and 851 that could have resulted in a life sentence. The plea agreement also contained a waiver-of-appeal provision under which Jones “waive[d] the right to appeal any sentence which is at or below the maximum of the guideline range as determined by the Court,” but still “retain[ed] the right to appeal a sentence above the guideline range.” Plea Agreement ¶ 10.

The PSR held Jones responsible for 108.96 grams of cocaine base, based upon the 91.95 grams found in the minivan and application of a crack/eash conversion ratio to the $600 seized from Jones’s person. The PSR calculated a total offense level of 27 and a criminal history category of I, resulting in a guideline range of between 70 and 87 months of imprisonment.

However, the two counts to which Jones pleaded guilty carried statutory minimum terms of imprisonment: 120 months for possession with intent to distribute fifty grams or more of cocaine base pursuant to 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(iii), and 60 months for possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c), to be served consecutively. On February 28, 2008, Jones filed a sentencing memorandum.

Jones stated that he “understood that [m]andatory [mjinimums have to be followed,” but pointed out that were it not for the mandatory minimum his “guidelines range for Count I would be substantially less than the mandatory minimum he will be required to serve.” Jones Sent. Mem. at 3. Noting that the district court had “its hands tied,” Jones requested that the court sentence him “to the absolute minimum possible sentence allowed by statute.” Id.

Jones also expressed his hope that he would “have a chance in the future to be before [the district] court under a [Federal Rule of Criminal Procedure] 35(b) [motion] so that the excessive length of this mandatory sentence can be justly shortened.” Id. at 4. On March 4, 2008, the district court sentenced Jones to the mandatory-minimum sentences for both counts: 120 months for possession with intent to distribute fifty grams or more of cocaine base, and 60 months for possession of a firearm in furtherance of a drug-trafficking offense, to be served consecutively. Jones timely appealed.

On May 5, 2008, the government filed a motion to dismiss Jones’s appeal, arguing that Jones had waived the right to appeal his sentence in the plea agreement. Jones filed a response on June 4, 2008. A motions panel of this court denied the motion to dismiss on July 28, 2008, stating that “[t]he parties may address the waiver issues within the appellate briefs.” United States v. Jones, No. 08-1352, slip op. at 2 (6th Cir. July 28, 2008) (unpublished order). II. ANALYSIS A.

Appellate Waiver We initially address the government’s argument that Jones waived, via his plea agreement, the right to appeal the ten-year mandatory-minimum sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(A)(iii). “We review the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo.” United States v. McGilvery, 403 F.3d 361, 362 (6th Cir.2005). “[P]lea agreements are to be interpreted strictly, with ambiguities construed against the government.” United States v.

Caruthers, 458 F.3d 459, 470 (6th Cir.), cert. denied, 549 U.S. 1088, 127 S.Ct. 752, 166 L.Ed.2d 582 (2006). Under the plea agreement, Jones “waive[d] the right to appeal any sentence which is at or below the maximum of the guideline range as determined by the Court,” but he “retaine[d] the right to appeal a sentence above the guideline range.” Plea Agreement ¶ 10. The government argues that Jones’s “mandatory minimum sentence is not ‘above’ the guideline range; it is the guideline sentence.” Gov’t Br. at 6.

In support of this argument, the government cites Guideline § 5Gl.l(b), which provides that “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 5G1.1(b) (2007). The government essentially argues that because Jones’s 180-month sentence is the “guideline sentence,” it also constitutes the “guideline range” referenced in the plea agreement.

Jones counters that the waiver provision of the plea agreement does not apply because his statutory-minimum sentence of 180 months (120 months for the drug-trafficking count and 60 months for the § 924(

c) count) is significantly above the applicable guideline range of 70 to 87 months determined by the district court. Thus, Jones argues that the term “guideline range” in the plea agreement refers to the range of 70 to 87 months calculated by the district court before applying the statutory minimums, while the government contends that it means the mandatory-minimum sentence of 180 months. We believe that § 5G1.1 is susceptible to two reasonable

interpretations, one of which favors the meaning of “guideline range” urged by Jones and one of which favors the meaning urged by the government. First, § 5G1.1 reasonably may be construed to support the meaning of “guideline range” advanced by Jones. On this view, § 5G1.1 refers to two distinct concepts: the “applicable guideline range” and the “guideline sentence.” The applicable “guideline range” is determined by the sentencing court based on the defendant’s offense level and criminal history.

When the statutory-minimum sentence is greater than the top of the guideline range calculated by the sentencing court, the statutory minimum effectively trumps the guideline range and becomes the “guideline sentence.” U.S.S.G. § 5Gl.1(b). Thus, § 5Gl.1(

b) contemplates a two-step process: first, the sentencing court must calculate the applicable guideline range; next, the sentencing court must determine whether the statutory minimum exceeds the top of the properly calculated guideline range. If the statutory minimum is greater than the top of the guideline range, the statutory minimum becomes the guideline sentence. On this reading of § 5Gl.l(b), the guideline range does not become equivalent to, or merge into, the statutory minimum/guideline sentence. The dissent offers another reasonable reading of § 5G1.1.

In the dissent’s view, when there is a mandatory minimum that is above the guideline range calculated by the sentencing court, that mandatory minimum, though a single point, becomes the “guideline range.” In light of these conflicting

interpretations of “guideline range,” we believe that the appeal waiver at issue in this case is ambiguous. This ambiguity is highlighted by the fact that other U.S. Attorneys’ offices evidently employ appeal waivers that eliminate this ambiguity by requiring a defendant to waive his right to appeal unless the sentence exceeds the greater of either the guideline range or the mandatory minimum. See, e.g., United States v.

Collins, 264 Fed.Appx. 513, 515 (7th Cir.2008) (order) (appeal waiver requiring the defendant to waive any challenge to a sentence unless “the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court (or any applicable statutory minimum, whichever is greater)”). We have repeatedly emphasized that ambiguities in plea agreements must be construed against the government. See, e.g., Caruthers, 458 F.3d at 470; United States v. Fitch, 282 F.3d 364, 367-68 (6th Cir.2002); United States v. Johnson, 979 F.2d 396, 399 (6th Cir.1992).

Given this principle, we conclude that the phrase “above the guideline range” in the plea agreement means above the guideline range of 70 to 87 months of imprisonment calculated by the district court before it applied the mandatory mínimums. Accordingly, we hold that Jones has not waived his right to appeal the ten-year minimum sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(A)(iii). B.

Proportionality Review Jones’s sole argument on appeal is that the ten-year mandatory-minimum sentence imposed pursuant to 21 U.S.C. § 841(b)(l)(A)(iii) for possession with intent to distribute over fifty grams of cocaine base is so grossly disproportionate to the offense committed that, as applied to Jones, it amounts to cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. “A constitutional challenge to a sentence is a question of law and reviewed de novo.” United States v.

Marks, 209 F.3d 577, 583 (6th Cir.), cert. denied, 531 U.S. 882, 121 S.Ct. 195, 148 L.Ed.2d 136 (2000). We have adopted the “narrow proportionality principle” articulated in Justice Kennedy’s opinion in Harmelin v. Michigan, 501 U.S. 957, 996-1009, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). See United States v. Hopper, 941 F.2d 419, 422 (6th Cir.1991). “Under this approach, there is no requirement of strict proportionality; the eighth amendment is offended only by an extreme disparity between crime and sentence.” Id.

Applying the narrow proportionality principle, the controlling opinion in Harmelin upheld Michigan’s penalty of a mandatory life sentence without the possibility of parole for possession of more than 650 grams of cocaine, even though the defendant had no prior felony convictions. Harmelin, 501 U.S. at 1009, 111 S.Ct. 2680 (Kennedy, J., concurring). We previously have upheld against proportionality attack a mandatory sentence of life imprisonment without parole for a defendant convicted of conspiracy to distribute cocaine base who was held accountable for 177.8 grams of cocaine base. United States v.

Hill, 30 F.3d 48, 49-50 (6th Cir.), cert. denied, 513 U.S. 943, 115 S.Ct. 350, 130 L.Ed.2d 305 (1994). Because it was the defendant’s third felony-drug conviction, 21 U.S.C. § 841(b)(1)(A)(iii) provided for a mandatory life sentence without the possibility of parole. We applied the narrow proportionality principle of Harmelin and concluded that the defendant’s “mandatory life sentence without parole was not so ‘grossly disproportionate’ to his crime as to violate the Eighth Amendment.” Id. at 50. In the instant case, Jones pleaded guilty to possession with intent to distribute fifty grams or more of cocaine base.

Like the defendant in Hill, Jones was convicted of a drug-trafficking offense and was held accountable for a large amount of cocaine base (here 108.96 grams). Moreover, the mandatory life sentence that we upheld in Hill was a far more severe penalty than the ten-year sentence that Jones now challenges.

Although Jones points out that his “history as an adult is relatively crime free” and that he scored just one criminal-history point, Jones Br. at 6, the Supreme Court in Harmelin upheld a mandatory life sentence for possession of 672 grams of cocaine despite the fact that the defendant had no prior felony convictions. Applying the narrow proportionality principle of Harmelin and in light of our precedents, we cannot say that this case presents the kind of extreme disparity between the sentence imposed and the crime committed that would offend the Eighth Amendment.

Because we conclude that the ten-year sentence is not grossly disproportionate to the offense committed, we do not conduct comparative analyses of the sentences imposed for the commission of the same crime within this jurisdiction or in other jurisdictions. See Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (“[Ijntrajurisdictional and interjurisdictional analyses are appropriate only in the rare care in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.”). III. CONCLUSION For the foregoing reasons, we AFFIRM Jones’s sentence.

CONCURRING IN PART, DISSENTING IN PART . In the context of determining "clearly established” law for purposes of 28 U.S.C. § 2254(d)(1), the Supreme Court has also focused upon Justice Kennedy’s opinion in Harmelin. See Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) ("[T]he only relevant clearly established law ... is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the 'exceedingly rare’ and 'extreme' case.” (quoting Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring))). .

Although we have suggested in dicta that "DOederal courts will not engage in a proportionality analysis except in cases where the penalty imposed is death or life in prison without possibility of parole,” United States v. Thomas, 49 F.3d 253, 261 (6th Cir.1995), Justice Kennedy's opinion in Harmelin recognized the possibility that proportionality review could apply to invalidate a sentence for a term of years, 501 U.S. at 997-98, 111 S.Ct. 2680 (Kennedy, J., concurring).