                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4549
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                 GREGORY LADNER,
                                               Appellant
                                   _____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (No. 2:06-cr-00224-001)
                    District Judge: Honorable James Knoll Gardner

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    June 26, 2012
                                   ____________

           Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

                                  (Filed: June 27, 2012)
                                      ____________

                                       OPINION
                                      ___________

CHAGARES, Circuit Judge.

      Gregory Ladner appeals his fourteen-month sentence on the grounds that the

District Court impermissibly relied on an uncorroborated police report from the

Philippines in imposing a sentence at the high end of the advisory United States

Sentencing Guidelines range. We will affirm the District Court‟s sentence.
                                             I.

       We write solely for the parties‟ benefit and, as such, we set forth only the facts

essential to our disposition. This criminal action arose out of Ladner‟s July 2005

conviction in the United States District Court for the Eastern District of Pennsylvania for

making false statements to a federal firearms licensee. In January 2006, Ladner was

sentenced to eighteen months of imprisonment for that offense. The sentencing judge

allowed Ladner to remain free on bail on the condition that he surrender for service of his

sentence on February 9, 2006. Instead, Ladner applied for a new passport by falsely

claiming that he had lost his previous passport and fled to the Philippines. Ladner was

captured in the Philippines in May 2009 after a woman filed a police report claiming that

Ladner sexually abused her. In the ensuing investigation, the Philippine police officers

discovered that Ladner was wanted in the United States and helped to arrange for his

deportation to California, where he made an initial appearance in federal court.

       Meanwhile, on October 3, 2006, a grand jury in the Eastern District of

Pennsylvania returned a superseding indictment charging Ladner with failure to surrender

for service of sentence, in violation of 18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(ii), giving a

false statement in an application and use of a passport, in violation of 18 U.S.C. § 1542,

and escape, in violation of 18 U.S.C. § 751(a). After he was transported back to

Pennsylvania from California, Ladner entered into a plea agreement in which he agreed

to plead guilty to failure to surrender for service of sentence and the Government agreed

to dismiss the other two charges. The plea agreement included a waiver of right to

appeal, subject to limited exceptions.

                                              2
       On August 16, 2010, the District Court sentenced Ladner to fourteen months of

imprisonment. The Court agreed with the parties that the base offense level for Ladner‟s

conviction was nine and he was in criminal history category three. The advisory

Sentencing Guidelines range was, therefore, eight to fourteen months. Both parties

sought a sentence within that range and neither party argued for either the higher or lower

end of that range. Ladner‟s one objection to the Pre-Sentence Report related to the

Philippine police report. He argued that the District Court should not consider the report

because it was uncorroborated and unreliable hearsay. The District Court overruled

Ladner‟s objection and considered the Philippine police report because it demonstrated

that Ladner had been apprehended in the Philippines rather than surrendering on his own.

       Ladner timely appealed his sentence, maintaining that the District Court erred in

overruling his objection and considering the Philippine police report because the

Government failed to establish that the report was reliable. In response, the Government

asserts that (1) Ladner‟s argument falls within the scope of the waiver of appeal in his

plea agreement, and (2) Ladner‟s argument is without merit because the District Court

did not impermissibly rely on the police report in making its sentencing determination.

                                             II.

       The District Court had subject matter jurisdiction over this criminal action

pursuant to 18 U.S.C. § 3231 and we have jurisdiction over the appeal pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742. “We exercise plenary review in deciding whether

an issue raised by a defendant falls within the scope of an appellate waiver in his plea

agreement.” United States v. Goodson, 544 F.3d 529, 537 n.6 (3d Cir. 2008). An

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appellate waiver does not divest this Court of subject matter jurisdiction. Instead, if we

conclude that the waiver is enforceable, we will affirm the judgment of the District Court

unless it would result in a miscarriage of justice. United States v. Gwinnett, 483 F.3d

200, 203, 206 (3d Cir. 2007).

       When the Government invokes a waiver of the right to appeal, we consider three

elements:

       (1) whether the waiver of the right to appeal h[is] sentence was knowing
       and voluntary; (2) whether one of the specific exceptions set forth in the
       agreement prevents the enforcement of the waiver; i.e., what is the scope of
       the waiver and does it bar appellate review of the issue pressed by the
       defendant; and (3) whether enforcing the waiver would work a miscarriage
       of justice.

Goodson, 544 F.3d at 536 (quotation marks omitted). An error amounts to a miscarriage

of justice only in “unusual circumstance[s.]” United States v. Khattak, 273 F.3d 557, 562

(3d Cir. 2001). The miscarriage of justice determination depends on factors such as

       [T]he clarity of the error, its gravity, its character (e.g., whether it concerns
       a fact issue, a sentencing guideline, or a statutory maximum), the impact of
       the error on the defendant, the impact of correcting the error on the
       government, and the extent to which the defendant acquiesced in the result.

Id. at 563 (quotation marks omitted). This Court has explained that the miscarriage of

justice exception to a waiver of appeal is extremely narrow:

       A waiver of the right to appeal includes a waiver of the right to appeal
       difficult or debatable legal issues – indeed, it includes a waiver of the right
       to appeal blatant error. Waiver would be nearly meaningless if it included
       only those appeals that border on the frivolous. . . . While it may appear
       unjust to allow criminal defendants to bargain away meritorious appeals,
       such is the necessary consequence of a system in which the right to appeal
       may be freely traded.

Id. at 562 (quotation marks omitted).

                                              4
      Ladner‟s plea agreement contained the following waiver of appeal:

      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 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 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C
      § 2255, or any other provision of law. This waiver is not intended to bar
      the assertion of constitutional claims that the relevant case law holds cannot
      be waived.

      a.     Notwithstanding the waiver provision above, if the government
             appeals from the sentence, then the defendant may file a direct
             appeal of his sentence.

      b.     If the government does not appeal, then notwithstanding the waiver
             provision set forth in this paragraph, the defendant may file a direct
             appeal but may raise only claims that:

             (1)    the defendant‟s sentence on any count of conviction exceeds
                    the statutory maximum for that count as set forth in paragraph
                    4 above;

             (2)    the sentencing judge erroneously departed upward pursuant to
                    the Sentencing Guidelines;

             (3)    the sentencing judge, exercising the Court‟s discretion
                    pursuant to United States v. Booker, 125 S. Ct. 738 (2005),
                    imposed an unreasonable sentence above the final Sentencing
                    Guideline range determined by the Court.

Supplemental Appendix (“SA”) 152–53.

      It is evident that Ladner‟s waiver was knowing and voluntary. During the plea

colloquy, the District Court explained the appellate rights that Ladner was waiving and

asked six times whether Ladner understood the waiver. Ladner said yes each time. The

District Court also verified that the plea agreement had been fully explained to Ladner

and that he had had an opportunity to discuss it with counsel. The District Court


                                            5
concluded that Ladner‟s plea was knowing and voluntary and that he was alert,

competent, and capable of entering an informed plea. Ladner does not dispute those

findings.

       The Government asserts that none of the exceptions to the waiver apply here.

While that is correct and Ladner has not argued otherwise, the waiver provides that it “is

not intended to bar the assertion of constitutional claims that the relevant case law holds

cannot be waived.” Ladner argues that the District Court violated his right to due process

by considering unreliable evidence in sentencing. See Roberts v. United States, 445 U.S.

552, 556 (1980) (“We have, however, sustained due process objections to sentences

imposed on the basis of misinformation of constitutional magnitude.” (quotation marks

omitted)); United States v. Williams, 668 F.2d 1064, 1072 (9th Cir. 1981) (“Where,

however, the trial judge relies on materially false or unreliable information, there is a

violation of defendant‟s due process rights.”); Moore v. United States, 571 F.2d 179, 183

n.7, 184 (3d Cir. 1978) (“In view of the due process limitation on the use by a sentencing

judge of false information about a defendant, Moore maintains that he has a right to have

his sentence vacated.”).

       The case law is sparse as to what constitutes a constitutional claim that cannot be

waived. It seems, however, that the exception for non-waivable constitutional claims is

subsumed by the miscarriage of justice exception to the enforceability of a waiver. See

Gwinnett, 483 F.3d at 203 (“[A] sentence based on constitutionally impermissible

criteria, such as race, or a sentence in excess of the statutory maximum sentence for the

defendant‟s crime, can be challenged on appeal even if the defendant executed a blanket

                                              6
waiver of his appeal rights.” (quotation marks omitted)); United States v. Brown, 232

F.3d 399, 403 (4th Cir. 2000) (relating that a defendant may appeal a sentence despite a

waiver of appeal if the sentence was “(1) imposed in excess of the maximum penalty

provided by law or (2) based on a constitutionally impermissible factor such as race.”).

       We conclude that no miscarriage of justice would result from enforcement of the

waiver because Ladner‟s due process claim is meritless. See Khattak, 273 F.3d at 562.

Congress has provided that:

       No limitation shall be placed on the information concerning the
       background, character, and conduct of a person convicted of an offense
       which a court of the United States may receive and consider for the purpose
       of imposing an appropriate sentence.

18 U.S.C. § 3661. Notwithstanding that broad latitude, the information relied upon at

sentencing must have “„sufficient indicia of reliability to support its probable accuracy.‟”

United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009) (quoting United States v.

Warren, 186 F.3d 358, 364-65 (3d Cir. 1999)). The Supreme Court has instructed that,

generally, facts that are relied upon to increase a sentence must be proved by a

preponderance of the evidence. United States v. Watts, 519 U.S. 148, 156 (1997).

       Ladner argues that the District Court may have impermissibly considered the

details of his alleged arrest in the Philippines as part of its decision to sentence him to the

high end of the Sentencing Guidelines range, and that such reliance was a due process

violation because the police report was uncorroborated and unreliable. The record,

however, demonstrates that the District Court did not consider the details of the police

report in its sentencing decision. In response to Ladner‟s objection in the Pre-Sentence


                                               7
Report, the District Court held that the Philippine police report was relevant because it

demonstrated that Ladner had been apprehended in the Philippines rather than

surrendering on his own. The Court concluded that Ladner‟s decision not to surrender

“may be pertinent and relevant to consider imposing a sentence at the upper end of the

guideline range or an upward guideline departure or a variance upwards from the

guidelines.” Appendix (“App.”) 38. The Court asserted that it would “give this

information some probative value, some relevance. I acknowledge that it has a certain

danger of unfair prejudice. I don‟t think it presents a danger of unfair prejudice, because

I‟m not going to be inflamed by it and I‟m not.” App. 41.

       The Court then delivered a detailed explanation for its sentence. In particular, the

Court explained that the sentence was appropriate in light of Ladner‟s violent criminal

history that was not taken into account by the Sentencing Guidelines because his prior

convictions for manslaughter, assault, and weapons violations were too old to affect his

criminal history category. The Court also asserted that the sentence reflected the

seriousness of the offense, would have the appropriate deterrence effect on possible

future offenders, and would provide Ladner with “needed educational or vocational

training, medical care or other correctional treatment in the most effective manner.” SA

121. The Court referenced Ladner‟s arrest in the Philippines only once, saying: “The

defendant was a fugitive for almost four years. He appears to have done nothing

[productive] with his time in [the] Philippines and [the] details surrounding his capture

are sordid.” SA 117.



                                             8
       It is manifest that the District Court did not factor the lurid details of Ladner‟s

Philippines arrest into its sentencing decision. To the contrary, the Court explicitly stated

that the police report was probative only to show that Ladner had not voluntarily

surrendered himself. Thus, this case is distinguishable from the case Ladner relies upon,

United States v. Berry, 553 F.3d 273. In Berry, the District Court opined that the

defendants‟ criminal history points did not adequately reflect their criminal history

because of prior arrests that had not resulted in prosecutions. Id. at 279. Unlike in this

case, the District Court in Berry expressly stated that it was considering the arrests in its

sentencing determination.

       In the absence of any indication in the record that the District Court relied on the

uncorroborated details of the Philippine police report at sentencing, we hold that Ladner‟s

due process argument lacks merit. Therefore, based on the factors set forth in Khattak,

enforcement of the waiver in Ladner‟s plea agreement will not result in a miscarriage of

justice.

                                             III.

       Having concluded that Ladner‟s waiver of the right to appeal is enforceable and

that Ladner‟s claim falls within the scope of the waiver, we will affirm the judgment and

sentence of the District Court.




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