UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ v. │ No. 14-3932 │ LEWIS POWELL, II, > │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:13-cr-00189—Donald C. Nugent, District Judge. Argued: July 29, 2015 Decided and Filed: August 19, 2015

Before: GILMAN, COOK, and KETHLEDGE, Circuit Judges.

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COUNSEL ARGUED: Vicki Lynn Ward, Cleveland, Ohio, for Appellant. Daniel J. Riedl, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Vicki Lynn Ward, Cleveland, Ohio, for Appellant. Daniel J. Riedl, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

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OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Lewis Powell, II pleaded guilty to numerous drug and weapons charges in April 2014. As part of his written plea agreement, Powell waived most of his post-conviction and appellate rights, but preserved the right to appeal the district court’s determination of his criminal-history category and any sentence imposed above his

1 No. 14-3932 United States v. Powell Page 2 properly calculated Sentencing Guidelines range. The district court subsequently classified Powell as a career offender and sentenced him to 155 months in prison, near the low end of the Guidelines range as determined by his career-offender status.

Powell has appealed, arguing that the district court miscalculated his criminal-history category and sentenced him above the properly calculated Guidelines range by classifying him as a career offender. For the reasons set forth below, we VACATE the sentence imposed by the district court and REMAND the case for resentencing consistent with this opinion.

I. BACKGROUND

In April 2013, Powell was one of several individuals named in a 93-count indictment based on a conspiracy to distribute drugs and firearms. Powell entered into a written plea agreement one year later, pleading guilty to only two of the multiple charges against him. The first was to Count 1 (conspiring to possess with the intent to distribute heroin and crack cocaine) and the other was to Count 8 (being an unlicensed firearm dealer). As part of Powell’s plea agreement, the government dismissed the remaining counts against him. In another part of the agreement, Powell waived his right to “appeal the conviction or sentence” with the exception of the following three issues:

(a) any punishment in excess of the statutory maximum; (b) any sentence to the extent it exceeds the greater of any mandatory minimum sentence or the greater of the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable by the Court; or (c) the Court’s determination of Defend