                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2894




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                                                                         NOT PRECEDENTIAL


                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT

                                           _________

                                    Nos. 07-2894 / 07-3061

                                           _________

                               UNITED STATES OF AMERICA,

                                                v.

                          ROBERT MONTANI, Appellant in 07-2894
                          TONINO LABELLA, Appellant in 07-3061


                                    ___________________

                          Appeal from the United States District Court
                                 for the District of New Jersey
                             Nos. 05-cr-00087-1 / 05-cr-00087-2

                      (District Judge: The Honorable William J. Martini)

                                    ___________________

                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      February 5, 2009

                   Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.

                                   (Filed: February 25, 2009)




       *
         Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit, sitting
by designation.
                                    OPINION OF THE COURT

McKee, Circuit Judge,

       In this joint prosecution, Robert Montani and Tonino Labella both appeal the sentence

that was imposed after they pled guilty to conspiracy to commit securities and wire fraud and

related offenses. For the reasons that follow, we will affirm.

                                                  I.


       As we write primarily for the parties who are familiar with this case, a detailed discussion

of the factual and procedural history is not necessary. Montani executed a plea agreement in

which he “voluntarily waive[d] . . . the right to file any appeal . . . which challenges the sentence

imposed by the sentencing court if that sentence falls within or below the Guidelines range that

results from the agreed total Guidelines offense level of 20.” Nevertheless, Montani now appeals

the restitution that was imposed, claiming that it was not properly calculated. Our review of the

validity and application of an appellate waiver is de novo. United States v. Khattak, 273 F.3d

557, 560 (3d Cir. 2001).

       Significantly, Montani does not argue that his waiver was unknowing or involuntary as is

required for us to ignore an appellate waiver under Khattak. Id. at 563. Instead, he argues that

the appellate waiver does not extend to restitution because it is not part of his “sentence.” The

argument is not only meritless, it is frivolous. We have previously held that “restitution is a

component of a criminal sentence.” United States v. Perez 514 F.3d 296, 298 (3d Cir. 2007).

See also, United States v. Leahy 438 F.3d 328, 333-35 (3d Cir. 2006) (holding that restitution


                                                  2
ordered as part of a criminal sentence is a criminal penalty), cert. denied, 549 U.S. 1071 (2006).

In Perez, the defendant also argued that the appellate waiver in his plea agreement did not apply

to restitution. In rejecting that argument, we explained: “ [b]y waiving his right to appeal his

criminal sentence, Perez waived his right to appeal the restitution order.” 514 F.3d at 299.

                                                II.

       Labella’s appeal is even less meritorious. He argues that his appellate waiver is not valid

and its enforcement would work a miscarriage of justice because the sentencing judge overstated

the length of the sentence he could receive. He relies on the fact that the sentencing judge as well

as his own attorney informed him that the statutory maximum penalty for the crimes he was

pleading guilty to was 25 years, while in reality he faced a combined maximum of only ten years.

He does not, however, explain how that misstatement could possibly void his guilty plea. If the

maximum sentence had been understated, there may have been an argument that his plea was not

knowingly entered. That didn’t happen.

       Adding to the frivolity of his claim is the fact that during his sentencing hearing, both

Labella and his attorney repeatedly indicated that all parties were in agreement that the maximum

combined sentence was ten years, and not 25 as previously stated.

       A defendant may withdraw a guilty plea after it has been accepted and before a sentence

has been imposed “if the defendant can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). See also, United States v. Wilson, 429 F.3d 455, 458

(3d Cir. 2005). Thus, even assuming that the erroneous information could somehow invalidate

his plea, Labella still had ample opportunity to withdraw his guilty plea before he was sentenced.

       Since the waiver that Labella agreed to is enforceable, his remaining arguments regarding


                                                 3
sentencing error by the district court are waived, and need not be considered. We also decline to

consider Labella’s claim of ineffective assistance of counsel as such claims should ordinarily be

raised in a collateral proceeding under 28 U.S.C. § 2255. United States v. Olivia, 46 F.3d 320,

325 (3d Cir. 1995).

                                                III.

         For all of the above reasons, we will affirm the orders of the judgment of sentence in both

cases.




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