                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 10-1044
                                    ____________

                            UNITED STATES OF AMERICA

                                            v.

                                    JOE DUNSTON,
                                            Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 08-cr-00289-1)
                     District Judge: Honorable Paul S. Diamond
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 16, 2010

                 Before: AMBRO, FISHER and WEIS, Circuit Judges.

                               (Filed: February 16, 2011)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Joseph Dunston pleaded guilty to three counts, including conspiracy to commit

armed bank robbery, armed bank robbery, and carrying a firearm during and in relation to

a crime of violence. Dunston now appeals, contending that his guilty plea was not

knowing, voluntary, and intelligent, that his 199-month imprisonment sentence was
substantively unreasonable, and that the sentence for the conspiracy count exceeded the

statutory maximum. We will affirm the District Court with respect to the first two claims

and, with respect to the third, direct the District Court to enter a sentence that is within

the statutory maximum.

                                               I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On July 24, 2008, a grand jury sitting in the United States District Court for the

Eastern District of Pennsylvania returned an indictment charging Dunston and his co-

defendants Robert Dales, Dante Toliver, and William Matthews with conspiracy to

commit armed bank robbery, in violation of 18 U.S.C. § 371, and armed bank robbery, in

violation of 18 U.S.C. § 2113(d). They were also charged with carrying a firearm during

and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).

       On February 4, 2009, Dunston entered into a cooperation agreement with the

government. The agreement provided that Dunston would plead guilty to the three

charges in the indictment. Further, it explained that the §§ 371 and 2113(d) offenses

were subject, respectively, to statutory maximums of five years‟ and twenty-five years‟

imprisonment and that the § 924(c) offense was subject to a mandatory minimum of

seven years‟ imprisonment and a maximum of life imprisonment. Dunston also agreed to

waive his right to appeal or present a collateral challenge to his conviction or sentence,

except in four circumstances: (1) if the government appealed; (2) if the court sentenced

                                               2
him above the statutory maximum; (3) if the sentencing judge erroneously departed

upward from the sentencing guidelines; or (4) if the court imposed an unreasonable

sentence that was above the applicable U.S. Sentencing Commission Guidelines range.

       On April 8, 2009, Dunston pleaded guilty to the three charges. At the beginning

of the colloquy, the District Court asked the following question of Dunston for each of

the crimes charged: “[A]re you pleading guilty to the crime . . . because you‟re, in fact,

guilty of having committed that crime?” Dunston answered in the affirmative for each of

the charges. The District Court then advised Dunston as to: the charges against him and

the elements of each charge; his trial rights; the rights he would forfeit by pleading guilty,

including his waiver of the right to appeal; the sentencing process; and the consequences

of pleading guilty, including the possible penalties for each count. Dunston stated that he

fully understood all of this, and at the conclusion of the colloquy, he entered a plea of

guilty on all counts.

       On December 22, 2009, the District Court sentenced Dunston for a total of 199

months‟ imprisonment for the offenses: 115 months for conspiracy, 115 months for

armed robbery, and 84 months for carrying a firearm during a crime of violence. The

115-month sentences were to run concurrently, and the 84-month sentence was to run

consecutively.

       Dunston now appeals the validity of his guilty plea, the substantive reasonableness

of his sentence, and the validity of the imposed sentence for conspiracy.




                                              3
                                             II.

       The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. In

general, “our review of the validity and scope of appellate waivers is plenary.” United

States v. Corso, 549 F.3d 921, 926 (3d Cir. 2008).            However, we review alleged

violations of Federal Rule of Criminal Procedure 11 for plain error if “a defendant seeks

to set aside his appellate waiver based on an unpreserved claim that the district court did

not conduct an adequate colloquy.” Id. at 926-27 (citing United States v. Goodson, 544

F.3d 529, 539 n.9 (3d Cir. 2008)).

                                             III.

       Dunston sets forth three arguments on appeal. First, Dunston argues that his guilty

plea must be vacated because he did not enter the plea knowingly and voluntarily. Next,

Dunston contends that the sentence imposed is substantively unreasonable considering

his criminal history and the disparity between his sentence and another defendant.

Finally, Dunston alleges that his sentence for criminal conspiracy is illegal and a remand

is necessary to modify the judgment. We address each argument in turn.

       First, Dunston contends that the District Court failed to inform him of the nature

of the charges against him, the consequences of a conviction, and the constitutional rights

he waived before pleading guilty. Dunston alleges that the plea colloquy was ineffective

because it was given after his guilty plea – claiming that his answers to the initial

questions raised by the District Court amounted to a plea of guilty for all counts. In

response, the government maintains that the District Court gave the plea colloquy prior to

                                              4
Dunston‟s guilty plea and that his plea was made knowingly and intelligently. The

government argues that the District Court‟s questions at the beginning of the colloquy

were appropriate, and Dunston‟s responses did not constitute a guilty plea.

       Federal Rule of Criminal Procedure 11(b)(1) requires that, “[b]efore the court

accepts a plea of guilty[,] . . . the court must address the defendant personally in open

court” and inform the defendant of his constitutional rights, the mandatory penalties, and

the nature of the charged offenses. Because Dunston failed to raise an objection in the

District Court, he must satisfy the plain-error rule. United States v. Vonn, 535 U.S. 55

(2002); Corso, 549 F.3d at 928. Dunston “must show (1) that there was an error, i.e., a

deviation from a legal rule, (2) that the error was „plain,‟ i.e., clear or obvious, and

(3) that the error affected his substantial rights.” Corso, 549 F.3d at 928-29 (citations

omitted). Additionally, “even if all three conditions are met we will exercise our

discretion to correct the unpreserved error only if [the Defendant] persuades us that (4) „a

miscarriage of justice would otherwise result,‟ that is, if „the error seriously affect[ed] the

fairness, integrity or public reputation of judicial proceedings.” Id. at 929 (citations

omitted). When analyzing the effect of a Rule 11 error, we may refer to the entire record.

Id.

       The District Court did not err. A review of the record illustrates that Dunston did

not enter his guilty plea until after the District Court conducted an exhaustive colloquy.

Before the colloquy, the District Court asked Dunston if the facts recited by the

prosecutor were correct and if he committed the acts. The District Court was merely

inquiring into the accuracy of the factual basis of the plea, and Dunston‟s affirmative

                                               5
answers did not amount to the entry of a plea. This came later at the end of the colloquy

when the District Court asked Dunston how he pleaded to each count, and he responded

“guilty.” The plea colloquy was adequate because it informed Dunston of both the

elements and penalties of the offense, as well as the rights that Dunston would be giving

up by pleading guilty. The initial questions raised by the District Court were for the

practical purpose of determining the need for a plea colloquy. Therefore, we find that

Dunston knowingly and voluntarily entered a valid guilty plea.

         Second, Dunston argues that the sentence he received was substantively

unreasonable. We decline to exercise our jurisdiction to review the merits of Dunston‟s

appeal if we conclude: “(1) that the issues he pursues on appeal fall within the scope of

his appellate waiver and (2) that he knowingly and voluntarily agreed to the appellate

waiver, unless (3) enforcing the waiver would work a miscarriage of justice.” Corso, 549

F.3d at 927. Because Dunston knowingly and voluntarily waived the right to appeal his

sentence, his claim fails to meet any of the exceptions to the appellate waiver provision,

and because a within-range sentence of 199 months‟ imprisonment is not a “miscarriage

of justice,” we decline to review the merits of Dunston‟s substantive reasonableness

claim.

         Third, Dunston and the government agree that the 115-month sentence for the

conspiracy count is in error because it exceeded the statutory maximum of not more than

five years‟ imprisonment for an 18 U.S.C. § 371 offense. For this reason, Dunston‟s

claim falls outside the appellate waiver, and we must direct the District Court to correct

the sentence. Because the District Court ordered this sentence to run concurrently with

                                             6
the 115-month sentence imposed for violating 18 U.S.C. § 2113(d), which carries a

statutory maximum of 300 months‟ imprisonment, the error did not result in a greater

sentence than what would have otherwise been imposed. But because the sentence

exceeded the statutory maximum, we will direct the District Court to amend its sentence

in accordance with the statute.

                                           IV.

       For the foregoing reasons, we will affirm the judgment of the District Court as to

Counts Two and Three: the 18 U.S.C. §§ 2113(d) and 924(c) offenses. However, we will

remand to the District Court as to Count One, the 18 U.S.C. § 371 conspiracy offense, for

entry of a sentence to be not more than 60 months‟ imprisonment in accordance with the

statutory maximum.




                                            7
