                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2007

USA v. Robinson
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2372




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                                                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No.: 04-2372

                            UNITED STATES OF AMERICA

                                              v.

                                    TROY ROBINSON
                                         a/k/a
                                    TROY SHABAZZ

                                             Troy Robinson,
                                                    Appellant

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Crim. No. 02-cr-00760)

                         District Court: Hon. Michael M. Baylson

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   November 9, 2006

                      Before: SCIRICA, Chief Judge, MCKEE and
                              STAPLETON, Circuit Judges


                              (Opinion filed: August 7, 2007)


                                         OPINION

McKEE, Circuit Judge

       Troy Robinson appeals the district court’s order denying the habeas petition he

filed pursuant to 28 U.S.C. § 2255 in which Robinson challenges the sentence that was

imposed following his negotiated guilty plea. In that plea agreement, Robinson waived

his right to appeal or collaterally attack his sentence or conviction except in limited
circumstances not relevant here. As we explain, based upon that waiver, we will affirm

the district court’s order denying relief.

                                              I.

       Because we write primarily for the parties, we have no need to recite the

underlying facts or procedural history of this case except insofar as may be helpful

to our brief discussion. We apply a de novo standard of review when determining the

validity of a waiver of appellate rights. United States v. Khattak, 273 F.3d 557, 563 (3d

Cir., 2001).

       In its Memorandum Opinion dated April 30, 2004, the district court explained that

all of Robinson’s claims for collateral relief, including the claim of ineffective assistance

of counsel, were barred by the terms of his plea agreement. ¶ 7 of that Agreement

provides in part as follows: “In exchange for the undertakings made by the government in

entering this plea agreement, the defendant voluntarily and expressly waives all rights to

appeal or to collaterally attack the defendant’s conviction, sentence, or any other matter

relating to this prosecution, . . ..” Notwithstanding that provision, however, ¶ 7(b) of the

Agreement allows Robinson to take a direct appeal if the government appeals or if his

sentence exceeds the statutory maximum or results from an erroneous upward departure

“from the otherwise applicable sentencing guideline range.”

       Robinson’s sole allegation of error here is that the district court erred in not

determining whether the waiver was knowing and voluntary. We issued a certificate of

appealability limited to allowing Robinson to appeal the effectiveness of his trial counsel




                                              2
for not appealing the sentence based on an allegedly erroneous upward departure under

U.S.S.G. § 2B1.1(b)(3).

       Robinson rests his ineffectiveness claim on his challenge to the sentencing court’s

adjustment from the base offense level of 6 under U.S.S.G. § 2B1.1(b)(3). The court

increased that base level for reasons the court explained in its Memorandum in support of

the denial of Robinson’s habeas petition. See J.A. 7 at n 2. The court also increased

Robinson’s offense level another 2 levels because the offense “involved a theft from the

person of another.” Id at 7. Robinson now claims trial counsel was ineffective for not

appealing the increase, but he does not challenge the findings of fact it was based upon;

i.e. theft of the diamonds from the “person of another.” Similarly, he does not suggest that

the sentence he received exceeds the statutory maximum, and it is clear that it does not.

       We have held that appellate waivers such as the one in Robinson’s plea agreement

deprives us of jurisdiction over an appeal, so long as the waiver is entered into knowingly

and voluntarily and does not work a miscarriage of justice. See Khattak, 273 F.3d at 563.

Although Robinson is collaterally attacking his sentence rather than challenging it on

direct appeal, the same considerations apply. See Jones v. United States, 167 F.3d 1142

(7th Cir. 1999). Even though we spoke in terms of such agreements depriving us of

jurisdiction in Khattak, we did not dismiss the appeal there for lack of jurisdiction.

Rather, we affirmed the judgment of conviction.

       In United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007), we explained that,

notwithstanding some of the language in Khattak, a waiver of appellate rights does not

actually deprive us of jurisdiction, and that the fact that we affirmed in Khattak, rather


                                              3
than dismissing the appeal suggests we actually had jurisdiction that we simply refused to

exercise. Thus, as we explained in Gwinnett, in order to enforce such waivers and ensure

that they are meaningful, “we will not exercise [our] jurisdiction. . . if we conclude that [a

defendant] knowingly and voluntarily waived [his/her] right to appeal unless the result

would work a miscarriage of justice.” Indeed, it could hardly be otherwise for an

agreement between a prosecutor and a defendant could hardly divest us of jurisdiction

bestowed by Congress.

       Here, Robinson’s allegations of ineffectiveness extend to trial counsel’s purported

failure to properly explain the provisions of the plea agreement waiving the right to

appeal or collaterally attack any sentence imposed pursuant to the plea agreement.

However, the argument is refuted by the record.

       As the district court noted, ¶ 7 of the plea agreement clearly explains that

Robinson is waiving his right to appeal “or collaterally attack the defendant’s conviction,

sentence, or any other matter relating to this prosecution, whether such a right to appeal

or collateral attack arises under . . . 28 U.S.C. § 2255, or any other provision of law. “

with narrow exceptions not relevant here.

       Although Robinson told the sentencing court that he could not read well, defense

counsel told the court that he (counsel) had explained the plea agreement to Robinson,

including the wavier, in Robinson’s presence. Robinson confirmed that, and stated that

he understood the terms of the agreement and had no questions. In addition, the court and

the prosecutor both reiterated that Robinson was waiving his right to challenge any aspect

of the proceeding with certain narrow exceptions.


                                              4
       Robinson now asks us to ignore the record and find that the waiver was not

knowing and intelligent because the court did not explain the exact terms of the waiver

with precision in open court. However, given the colloquy, the wording of the plea

agreement, representations of defense counsel, and statements by the prosecutor as well

as Robinson, the record here is sufficient to establish that the waiver was knowing and

voluntary despite Robinson’s attempts to disavow it.

       Except for Robinson’s unsupported allegations, there is nothing on this record to

suggest that Robinson’s waiver is not valid and enforceable as written. In fact, the record

establishes the contrary. On this record, we can not reverse the district court’s denial of

habeas relief without making a mockery of the waiver Robinson signed; the same kind of

waiver that we have already determined to be valid and binding when entered into

knowingly, and intelligently. See Khattak, and Gwinnett, supra. Since the record here

establishes that this waiver was knowing and intelligent, we will refrain from exercising

our jurisdiction, and affirm the district court’s order denying habeas relief based on the

terms of the plea agreement.

                                             II.

       For the reasons set forth herein, we will dismiss the appeal.




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