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


4-1-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4326




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Recommended Citation
"USA v. Carter" (2009). 2009 Decisions. Paper 1606.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1606


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                                                    NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 07-4326


                          UNITED STATES OF AMERICA

                                           v.

                                   JOHN S. CARTER,
                                               Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Crim. No. 07-cr-00295)
                 District Judge: The Honorable R. Barclay Surrick


                                 Argued: March 23, 2009


  Before: BARRY, GREENBERG, Circuit Judges, and ACKERMAN,* District Judge

                             (Opinion Filed: April 01, 200)


James L. Sultan, Esq. (Argued)
Charles W. Rankin, Esq.
Rankin & Sultan
151 Merrimac Street
2 nd Floor
Boston, MA 02114

Counsel for Appellant


   *
    Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.
John J. Pease, III, Esq. (Argued)
Robert A. Zauzmer, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106-0000

Counsel for Appellee




                                        OPINION




BARRY, Circuit Judge

       Pursuant to a plea agreement, John S. Carter pled guilty on June 4, 2007 to two

counts of mail fraud, in violation of 18 U.S.C. § 1341, and one count of tax evasion, in

violation of 26 U.S.C. § 7201, as charged in an information filed on May 21, 2007. The

District Court accepted his plea as knowing and voluntary pursuant to Federal Rule of

Criminal Procedure 11(b)(1), and subsequently imposed a sentence which included a term

of imprisonment of 180 months.

       Despite the fact that his plea agreement included a waiver of appeal, Carter now

appeals, arguing that the District Court (1) overstated the amount of loss occasioned by

his fraud pursuant to U.S.S.G. § 2B1.1; and (2) erred in applying a two-level upward

adjustment for obstruction of justice under U.S.S.G. § 3C1.1 without a specific finding of

materiality or willfulness. The government has moved to enforce the appellate waiver

and for summary affirmance. We agree, albeit belatedly, that the waiver should be

                                           -2-
enforced and the judgment of sentence affirmed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). We will not

exercise that jurisdiction to reach the merits of a defendant’s appeal, however, if we

conclude that the defendant knowingly and voluntarily waived his right to appeal, unless

the result would work a miscarriage of justice. See United States v. Goodson, 544 F.3d

529, 536 (3d Cir. 2008); Gwinnett, 483 F.3d at 203. Where, as here, a defendant has not

objected in the district court to a Rule 11 error, we review for plain error. See Goodson,

544 F.3d at 539.

       We have heard extensive argument and have considered the parties’ written

submissions, including Carter’s arguments as to why his waiver of appeal should not be

enforced. At oral argument, counsel for Carter conceded that, despite the District Court’s

technical violation of Rule 11(b)(1)(N) in its colloquy with Carter, the deficient colloquy

did not affect Carter’s substantial rights “by precluding him from knowing of and

understanding the significance of the binding appellate waiver in the plea agreement.” Id.

at 540. Accordingly, Carter has failed to demonstrate plain error as to his Rule 11 claim.

See id. at 540-41. Moreover, we find no error as to any other argument raised by Carter

such that enforcement of Carter’s appellate waiver will result in a miscarriage of justice.

United States v. Corso, 549 F.3d 921, 931 (3d Cir. 2008). We will, therefore, enforce the

waiver and will not reach the merits of this appeal.


                                            -3-
For the foregoing reasons, we will affirm the judgment of sentence.




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