                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1446




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NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                               Case No: 06-1446

                       UNITED STATES OF AMERICA


                                        v.


                             FREDERICK COATES
                                 a/k/a Kruger

                                    Frederick Coates,
                                             Appellant



                On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                          District Court No. 04-CR-145
                District Judge: The Honorable Joy Flowers Conti


               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                June 4, 2007

             Before: SMITH, COWEN, and SILER, Circuit Judges*


                              (Filed: June 8, 2007)


      *
       The Honorable Eugene E. Siler, Senior Circuit Judge of the United States
Court of Appeals for the Sixth Circuit, sitting by designation.

                                        1
                                     OPINION


SMITH, Circuit Judge.

      Frederick Coates agreed to plead guilty to one count of conspiring to

distribute heroin in violation of 21 U.S.C. § 846 and to waive his right to appeal.

The parties orally amended the indictment during the change of plea hearing to

eliminate the mandatory minimum of sixty months and Coates pleaded guilty to the

amended charge. The amendment was for naught, however, as the presentence

report noted that Coates had two convictions which qualified as crimes of violence

under U.S.S.G. § 4B1.2(a). As a result, the presentence report classified Coates as

a career offender under U.S.S.G. § 4B1.1. Without the career offender

enhancement, Coates’s offense level was 19 and his criminal history category was

IV, yielding a guideline range of 46 to 57 months. The application of the

enhancement, however, increased his offense level to 32 and elevated his criminal

history category to VI, resulting in a guideline range of 151 to 188 months.

      Coates objected to the career offender enhancement, arguing that his

reckless endangerment conviction under Pennsylvania law did not qualify as a

crime of violence. The District Court rejected the argument. Thereafter, Coates



                                          2
moved to withdraw his guilty plea. This motion was also rejected by the Court. At

sentencing, the District Court found that Coates’s enhanced criminal history

overstated his past criminal conduct and imposed a sentence of 108 months, 43

months below the guideline range. Despite having waived his right to appeal,

Coates appealed.

      The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. The

government contends that we lack jurisdiction because of Coates’s appellate

waiver. In United States v. Gwinnet, 483 F.3d 200 (3d Cir. 2007), we clarified that

“this court retains subject matter jurisdiction over the appeal by a defendant who

had signed an appellate waiver.” Id. at 203 (discussing United States v. Khattak,

273 F.3d 557, 563 (3d Cir. 2001)). Thus, we exercise jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v. Cooper, 437 F.3d

324, 327-28 (3d Cir. 2006).

      Coates contends that the District Court erred in several respects. First, he

alleges that the District Court improperly concluded that his reckless endangerment

conviction under Pennsylvania law constituted a crime of violence, thereby

allowing him to be classified as a career offender. Second, he asserts that the

District Court erred by denying his motion to withdraw his guilty plea. Finally,

Coates asserts that his sentence of 108 months is unreasonable. Because we


                                          3
conclude that Coates’s appellate waiver is enforceable, we will affirm his

conviction.

       In United States v. Khattak, 273 F.3d 557 (3d Cir. 2001), we concluded that

the waiver of appellate rights in criminal cases does not contravene public policy.

Although we instructed that such waivers must be “strictly construed,” we held that

“waivers of appeal, if entered into knowingly and voluntarily, are valid.” Id. at

562.

       Here, Coates’s appellate waiver is broad, waiving “the right to take a direct

appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. §

3742.” The plea agreement specifies that “Coates further waives the right to file a

motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or

sentence, and the right to file any other collateral proceeding attacking his

conviction or sentence.” If enforceable, this waiver would preclude us from

reviewing not only Coates’s challenge to the District Court’s ruling on his motion

to withdraw his plea, but also the sentencing issues raised by Coates. See United

States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007) (reiterating that “[c]ase law

makes clear that an appeal of a denial of a motion to withdraw a guilty plea is an

attempt to contest a conviction on appeal and thus falls within the plain language of

[an appeal] waiver provision”) (internal quotation marks and citation omitted);


                                          4
United States v. Michlin, 34 F.3d 896, 898 (2d Cir. 1994) (concluding that

knowing and voluntary waiver of appeal was enforceable and barred review of

whether the District Court erred by refusing to grant defendant’s motion to

withdraw his guilty plea).

      Coates does not contend that his waiver is unenforceable because it was

unknowing or involuntary.1 Instead, he argues that this appeal may proceed

because it falls within one of the exceptions contained in the waiver that allows

him to appeal if the Court erroneously departed upward from the guideline range

determined by the Court under the Sentencing Guidelines. According to Coates,

the Court erroneously departed upward by applying the career offender

enhancement and thereafter imposing its sentence pursuant to this erroneously

enhanced guideline range.



      1
        Federal Rule of Criminal Procedure 11(b)(1)(N) provides that a district
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 . . . (N) the terms of any plea-agreement provision waiving the right to
appeal or to collaterally attack the sentence.” Here, even though the government’s
recitation of the terms of the plea agreement included the fact that Coates agreed to
waive his right to appeal, the District Court failed to comply with the mandate of
Rule 11(b)(1)(N) as it at no point in time inquired whether Coates understood what
the term meant. We reiterate that “[i]n determining whether a waiver of appeal is
‘knowing and voluntary, the role of the sentencing judge is critical.” Khattak, 273
F.3d at 563 (emphasis added). Yet, as we pointed out above, Coates did not
dispute that his appeal waiver was knowing and voluntary.

                                          5
      This argument ignores the plain text of the waiver’s exception. The

exception set forth in the waiver does not permit Coates to raise on appeal whether

the application of the career offender enhancement, which increased his guideline

range, was correct. Rather, Coates may challenge his sentence only in the event

that the District Court departed upward from the guideline range it determined.

We cannot ignore that the application of a career offender enhancement under

U.S.S.G. § 4B1.1 affects both the offense level and the criminal history category of

the defendant. Application of the enhancement is therefore part of the process of

computing the guideline range. As a result, the enhancement does not constitute a

departure from the guideline range determined by the District Court. Because the

District Court computed the guideline to be 151 to 188 months and because the

Court did not depart upward from that range, this appeal is barred by Coates’s

waiver of his appeal rights.

      Coates’s supplemental letter to the Court argues that the District Court’s

error, in concluding that his Pennsylvania reckless endangerment conviction

qualified as a crime of violence, constitutes a miscarriage of justice under Khattak

that warrants invalidating the waiver. 273 F.3d at 562. We find no error in this

regard inasmuch as the text of Pennsylvania’s reckless endangerment statute, 18

Pa.C.S. § 2705, satisfies the definition of crime of violence in § 4B1.2(a)(2).


                                          6
      In sum, we conclude that Coates’s waiver of his appeal rights is valid. For

that reason, we will enforce the waiver and will affirm the judgment.




                                         7
