                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-2589
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                                JOSE LUIS VAZQUEZ,
                                            Appellant
                              _______________________

                           On Appeal from the District Court
                         for the Middle District of Pennsylvania
                          D.C. Criminal No. 1-10-cr-00167-002
                              (Honorable Sylvia H. Rambo)
                                    ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 10, 2013

         Before: SCIRICA, HARDIMAN, VAN ANTWERPEN, Circuit Judges

                                 (Filed: June 26, 2013)

                                  _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

      Jose Luis Vazquez appeals his judgment of sentence for conspiracy to distribute

and possession with the intent to distribute methamphetamine in violation of 21 U.S.C. §

846. Vazquez contends his sentence is procedurally and substantively unreasonable. We
decline to exercise our jurisdiction to review the merits of Vazquez‟s appeal because

Vazquez knowingly and voluntarily waived his right to appeal and enforcing the

appellate waiver in his plea agreement will not work a miscarriage of justice. We will

affirm the judgment of the District Court.

                                             I.

       On August 11, 2010, Vazquez was charged with various drug offenses arising

from his participation in a Pennsylvania-based drug trafficking organization operated by

his brother, Fernando Amato. On November 9, 2011, Vazquez entered into a plea

agreement with the government in which he agreed to plead guilty to conspiracy to

distribute and possession with the intent to distribute methamphetamine in violation of 21

U.S.C. § 846. Under the plea agreement‟s appellate waiver provision:

       [Vazquez] knowingly waive[d] the right to appeal any conviction and
       sentence, including a sentence imposed within the statutory maximum, on
       any and all grounds set forth in Title 18, United States Code, Section 3742
       or any other grounds, constitutional or non-constitutional, including the
       manner in which that sentence was determined in light of United States v.
       Booker, 125 S. Ct. 738 (2005).

By signing the plea agreement, Vazquez acknowledged that “I have read this agreement

and carefully reviewed every part of it with my attorney. I fully understand it and I

voluntarily agree to it.”

       At the November 10, 2011 change of plea hearing, the government read the terms

of the plea agreement—including the appellate waiver provision—into the record and

Vazquez again acknowledged he understood it. The District Court then conducted an

extensive Rule 11 colloquy in which it verified Vazquez‟s understanding of each of the


                                             2
plea agreement‟s terms. With respect to the appellate waiver provision, the District Court

explained:

       There are two types of an appeal that you can take. One is a direct appeal,
       and you can appeal your conviction or the sentence that is imposed on any
       constitutional or other grounds. You could appeal an incorrect
       determination of your sentence, the voluntariness of your plea. The other
       appeal is what we call a collateral appeal; that is, issues that you can‟t raise
       on direct appeal such as competency of counsel.
              You have agreed to waive those. That does not mean you still
       cannot file an appeal. However, the Court of Appeals may not accept it if
       they determined you voluntarily and intelligently waived your right to
       appeal.

Vazquez confirmed his understanding of the District Court‟s explanation of the appellate

waiver provision.

       At the May 22, 2012 sentencing hearing, the District Court sentenced Vazquez to

72 months‟ imprisonment. Although the revised presentence report calculated a

sentencing guideline range of 135-168 months‟ imprisonment, the plea agreement capped

Vazquez‟s potential sentence at 108 months‟ imprisonment. The District Court

determined a sentence of 72 months‟ imprisonment was appropriate because of

Vazquez‟s limited role in the criminal enterprise, his lack of a criminal history, and the

sentencing disparity between Vazquez and one of his codefendants that would result

under the 108-month maximum set by the plea agreement. However, the District Court

rejected Vazquez‟s request for a sentence of only 60 months‟ imprisonment, in part,

because Vazquez illegally reentered the United States in 1997. Vazquez timely appeals

the judgment of sentence.

                                              II.


                                              3
       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291. “„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. Castro, 704 F.3d 125, 135 (3d Cir. 2013) (quoting United

States v. Goodson, 544 F.3d 529, 537 n.6 (3d Cir. 2008)). “We decline to exercise

jurisdiction over the appeal where [1] the issues on appeal fall within the scope of the

waiver and [2] the defendant knowingly and voluntarily agreed to the waiver, unless [3]

enforcing the waiver would work a miscarriage of justice.” Id. (quoting United States v.

Saferstein, 673 F.3d 237, 242 (3d Cir. 2012)) (some internal quotation marks omitted).

       With respect to the scope of the waiver, we analyze the language of the plea

agreement using contract law standards. Id. (citing Goodson, 544 F.3d at 535 n.3). “„In

view of the government‟s tremendous bargaining power courts will strictly construe the

text [of a plea agreement] against the government when it has drafted the agreement.‟”

Id. (quoting United States v. Williams, 510 F.3d 416, 422 (3d Cir. 2007)).

       With respect to whether the waiver was knowing and voluntary, we look to

whether the sentencing judge satisfied the requirements of Fed. R. Crim. P. 11(b)(1)(N).

Id. (citing United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001)). Rule 11(b)(1)(N)

provides that “[b]efore the court accepts a plea of guilty . . . the court must address the

defendant personally in open court. During this address, the court must inform the

defendant of, and determine that the defendant understands, . . . the terms of any plea-

agreement provision waiving the right to appeal . . . .”

       Finally, we consider a number of factors in determining whether enforcing the

                                              4
appellate waiver would work a miscarriage of justice. Castro, 704 F.3d at 136 (citing

Khattak, 273 F.3d at 562). These include “the clarity of the error [alleged below], its

gravity, its character . . . , 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. (quoting Khattak, 273 F.3d at 563) (alteration omitted).

       On appeal, Vazquez challenges his sentence as procedurally and substantively

unreasonable.1 Vazquez contends his appeal is not barred by the plea agreement‟s

appellate waiver because enforcing the waiver would work a miscarriage of justice.

Vazquez attempts to explain how enforcing the appellate waiver would work a

miscarriage of justice by repeating his arguments as to why his sentence is procedurally

and substantively unreasonable: “By failing to consider all of the § 3553(a) factors and

relying instead upon . . . facts unsupported by the evidence of record, the District Court

exercised a miscarriage of justice . . . .”

       We decline to exercise jurisdiction over Vazquez‟s appeal because (1) the issues

Vazquez raises on appeal fall within the scope of the appellate waiver, (2) Vazquez

knowingly and voluntarily agreed to the waiver, and (3) enforcing the waiver will not

work a miscarriage of justice.

       First, the issues Vazquez raises on appeal fall within the scope of the appellate

waiver. The appellate waiver states that “the defendant knowingly waives the right to

appeal any conviction and sentence . . . on any and all grounds set forth in [18 U.S.C. §


1
 Because we will enforce Vazquez‟s appellate waiver, we do not address his arguments
on the merits.
                                               5
3742].” This language captures an appeal that challenges a sentence as procedurally and

substantively unreasonable. See 18 U.S.C. § 3742(a)(1) (“A defendant may file a notice

of appeal in the district court for review of an otherwise final sentence if the sentence . . .

was imposed in violation of law . . . .”); United States v. Cooper, 437 F.3d 324, 327-28

(3d Cir. 2006) (explaining that a post-Booker appeal based on the unreasonableness of a

sentence is an appeal asserting that the sentence was “imposed in violation of law” under

18 U.S.C. § 3742(a)(1)), abrogated on other grounds by Kimbrough v. United States, 552

U.S. 85 (2007).

       Second, Vazquez knowingly and voluntarily waived his right to appeal. Our

review of the record shows that the District Court satisfied the requirements of Rule

11(b)(1)(N) when it personally addressed Vazquez in open court and explained the terms

of the plea agreement, placing particular emphasis on the content of the appellate waiver

provision. Moreover, the record clearly shows that Vazquez acknowledged his

understanding of the terms of the plea agreement at least three times: (1) when he

initially signed the plea agreement, (2) when he affirmed the terms read into the record by

the government at the change of plea hearing, and (3) when he affirmed the District

Court‟s detailed explanation of his appellate rights during the Rule 11 colloquy.

       Third, enforcing the appellate waiver will not work a miscarriage of justice

because the District Court‟s alleged errors are not clear and their impact on the defendant

is minimal. Although Vazquez faults the District Court for not properly considering all

of the sentencing factors laid out in 18 U.S.C. § 3553(a), he concedes that the District

Court considered at least three of the sentencing factors. The District Court‟s failure to

                                               6
consider every § 3553(a) sentencing factor to Vazquez‟s satisfaction is not a clear error.

See Cooper, 437 F.3d at 329 (explaining that a trial court is not obligated to “discuss and

make findings as to each of the § 3553(a) factors if the record makes clear the court took

the factors into account in sentencing”).

       Vazquez also faults the District Court for considering his 1997 illegal reentry into

the United States. According to Vazquez, his illegal reentry is not supported by the

record because “evidence . . . established that [he] is currently in the United States legally

and . . . was never prosecuted for the alleged illegal reentry, pursuant to 8 U.S.C. § 1326

or any other applicable statute.”2 However, the revised presentence report clearly

indicates that Vazquez illegally reentered the United States sometime in 1997: “Records

indicate that [Vazquez] was apprehended on February 22, 1997, and was deported on

February 27, 1997. The defendant advised that he re-entered the United States a few

weeks later . . . .” Thus, we cannot say that the District Court clearly erred in considering

Vazquez‟s 1997 illegal reentry when it sentenced him to 72 months‟ imprisonment.

       Even if the District Court erred in considering the factors discussed above, the


2
  Here, Vazquez points to the character testimony of his father-in-law, who testified that
he assisted Vazquez in becoming “legalized,” as well as a letter from Vazquez‟s mother
stating that he had “fixed his papers.” However, this evidence actually further supports
the District Court‟s finding that Vazquez reentered the country illegally. Vazquez‟s
mother-in-law testified that Vazquez met her daughter, Vazquez‟s wife, in 1998.
Vazquez‟s father-in-law testified that he “helped to get [Vazquez] legalized.” Since
Vazquez did not meet his wife until 1998, it was a reasonable inference that Vazquez‟s
father-in-law did not know Vazquez until 1998 as well and thus did not help him become
“legalized” until after his 1997 reentry, indicating that the reentry was illegal. Cf. United
States v. Cassiliano, 137 F.3d 742, 747 (2d Cir. 1998) (“[T]he district court is entitled to
rely on . . . all reasonable inferences that may be drawn from all of the evidence” when
sentencing).
                                              7
impact on Vazquez was minimal because he received a sentence well below the 108-

month cap set by his plea agreement. Such a result does not constitute a miscarriage of

justice.

                                           III.

       For the foregoing reasons, we will enforce Vazquez‟s waiver of his right to appeal

and affirm the judgment of the District Court.




                                            8
