                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-9-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4403




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                                                          NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                              _______________

                                No. 07-4403
                              _______________

                       UNITED STATES OF AMERICA

                                      v.

                       KEVIN MARSHALL WARNER,
                                                        Appellant


                On Appeal From the United States District Court
                    for the Western District of Pennsylvania
                         (W.D. Pa. No.: 05-cr-00053-2E)
                 District Judge: Honorable Sean J. McLaughlin

                   Submitted Under Third Circuit LAR 34.1(a)
                               October 3, 2008

          Before: FISHER, CHAGARES, and HARDIMAN Circuit Judges.

                           (Filed: December 9, 2008)


                             __________________

                           OPINION OF THE COURT
                             __________________




CHAGARES, Circuit Judge.
       Pursuant to a plea agreement, Kevin Marshall Warner (Warner) pled guilty to

conspiracy to pass false and fictitious checks and to one count of passing false and

fictitious checks. Warner was subsequently sentenced to 41 months imprisonment.

Warner appeals his sentence, arguing that the District Court committed reversible legal

error by relying on double hearsay at the sentencing hearing and, in the alternative, that

the District Court’s factual finding that Warner served as a “manager or supervisor” for

purposes of U.S.S.G. § 3B1.1(b) amounted to clear error. Because Warner’s plea

agreement contains an explicit waiver of his right to appeal on most grounds, and because

neither of these challenges falls within the narrow category of appeal rights Warner

reserved, we will affirm the sentence imposed by the District Court.

                                             I.

       Because we write solely for the benefit of the parties, we will only briefly

summarize the essential facts.

       On approximately December 13, 2005, Warner and eight other defendants were

indicted for conspiracy to pass false and fictitious checks in violation of 18 U.S.C. § 371.

Warner was also charged with 15 counts of passing false and fictitious checks in violation

of 18 U.S.C. §§ 514(a) & 2. On July 11, 2007, Warner pled guilty to Count 1

(conspiracy) and Count 15 (passing a false and fictitious check), pursuant to a negotiated

plea agreement. Warner also accepted responsibility for the remaining counts of the

indictment, agreed to pay mandatory restitution, and entered a conditional waiver of his



                                              2
right to appeal. Warner’s appellate waiver contains three exceptions; he can appeal only

if: (1) the United States appeals from the sentence, (2) the sentence exceeds the

applicable statutory limits set forth in the United States Code, or (3) the sentence

unreasonably exceeds the Guideline range determined by the Court under the Sentencing

Guidelines. In exchange, the Government agreed to dismiss the remaining counts of the

indictment and to move for an offense level reduction for acceptance of responsibility.

       At the plea hearing, the District Court found that Warner was competent and

capable of entering an informed plea, that his plea of guilty was knowingly and

voluntarily made, and that it was supported by an independent basis in fact containing

each of the essential elements of the offense. The District Court specifically inquired

whether Warner understood that “by virtue of the terms and conditions of [his] plea

agreement, [his] rights to appeal have been significantly restricted.” (Supp. App. 15.)

Warner answered affirmatively. Satisfied, the District Court accepted Warner’s plea and

directed the preparation of a Presentence Report (PSR).

       The PSR determined that Warner’s base offense level was 7 (U.S.S.G. §

2B1.1(a)(1)), but that additional points had to be added to the offense level as follows: 4

points because there was a loss of more than $10,000 but less than $30,000 (U.S.S.G. §

2B1.1(b)(1)(C)); 2 points because the offense involved ten or more victims (U.S.S.G. §

2B1.1(b)(2)(A)); and 3 points because the probation officer found that Warner served as a

manager or supervisor (but not an organizer or leader) of the conspiracy, and the criminal



                                              3
activity involved five or more participants (U.S.S.G. § 3B1.1(b)). This generated an

offense level of 16, which the probation officer reduced to 13 for acceptance of

responsibility. That offense level, and the fact that Warner fell into Criminal History

Category VI, resulted in an advisory Guideline range of 33 to 41 months.

       Warner challenged the application of the 3-point aggravating role adjustment,

insisting that he was not a “manager or supervisor” within the meaning of U.S.S.G. §

3B1.1(b). The District Court conducted a sentencing hearing on this issue. The

Government presented testimony of Secret Service Special Agent Keith Hiner, who

relayed information contained in the Secret Service Investigative Report. The Report

summarized interviews of Warner’s six co-defendants. Over Warner’s hearsay

objections, the District Court admitted Agent Hiner’s testimony, concluding that the

testimony contained the requisite indicia of reliability. The District Court ultimately

sentenced Warner to 41 months imprisonment for both Count 1 and Count 15, to run

concurrently, with 5 years of supervised release to follow each count, also to run

concurrently. All remaining counts were dismissed in accordance with the plea

agreement. Warner now appeals his sentence.

                                             II.

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

is appealing from a final judgment of conviction, we have jurisdiction pursuant to 28

U.S.C. § 1291. See Flanagan v. United States, 465 U.S. 259, 263 (1984); Catlin v. United



                                             4
States, 324 U.S. 229, 233 (1945).

       We review de novo the validity of a waiver-of-appeals provision in a plea

agreement. United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001). If the defendant

agreed to the waiver knowingly and voluntarily, we will enforce it unless a miscarriage of

justice would result. See United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005). The

waiver provision is subject to a rule of strict construction, but where it applies, the

defendant has the burden of “‘show[ing] why we should not enforce’” it. Khattak, 273

F.3d at 562-63 (quoting United States v. Rubio, 231 F.3d 709, 711 (10th Cir. 2000)).

       We exercise a mixed standard of review over the District Court’s conclusions at a

sentencing hearing: we review the District Court’s interpretation of the Sentencing

Guidelines de novo and the District Court’s findings of fact for clear error. United States

v. Navarro, 476 F.3d 188, 191 (3d Cir. 2007).

                                              III.

       Warner challenges his sentence on two grounds. First, he argues that the District

Court committed a legal error when it admitted Agent Hiner’s hearsay testimony at

sentencing because that testimony was inherently unreliable and Warner’s inability to

cross-examine witnesses violated the Confrontation Clause. Second, Warner asserts that

even if the hearsay testimony was properly admitted, the District Court’s factual finding

that Warner served as a “manager or supervisor” for purposes of U.S.S.G. § 3B1.1(b)

was clearly erroneous.


                                               5
       We will not exercise jurisdiction to review the merits of an appeal “if we conclude

that [the defendant] knowingly and voluntarily waived her right to appeal unless the result

would work a miscarriage of justice.” United States v. Gwinnett, 483 F.3d 200, 203 (3d

Cir. 2007). It is undisputed that Warner’s plea of guilty was knowing and voluntary, and

that the plea agreement contained a waiver of Warner’s right to appeal, subject to the

three aforementioned exceptions. It is also undisputed that none of these exceptions

apply to Warner’s appeal. The Government has not appealed Warner’s sentence, the

sentence does not exceed the statutory maximum, and Warner’s 41-month imprisonment

falls within the Guideline range determined by the District Court (33 to 41 months).

Thus, Warner’s challenges to his sentence are barred by the terms of his plea agreement.

       Warner argues, however, that the District Court’s post-sentencing remarks

constitute a rejection of the appellate waiver clause of his plea agreement or a

reinstatement of his appeal rights. Rule 32(j)(1)(B) of the Federal Rules of Criminal

Procedure provides that the District Court must advise the defendant of any right to

appeal his sentence. Here, the District Court advised Warner, “[Y]ou have the right to

appeal this sentence which I imposed today.” App. 66. The District Court did not remind

Warner that his appeal rights are restricted under his plea agreement. We hold that this

omission does not affect the appellate waiver clause of Warner’s plea agreement.

       In Khattak, we held that appellate waivers are valid “if entered into knowingly and

voluntarily.” Khattak, 273 F.3d at 562 (emphasis added). Thus, the relevant context to


                                             6
consider is that which surrounds a defendant’s acceptance of the appellate waiver. At the

plea hearing, the District Court advised Warner of the restrictions to his right to appeal,

and Warner knowingly and voluntarily accepted the plea agreement in spite of those

restrictions. In fact, he affirmed in open court that he understood that “by virtue of the

terms and conditions of [his] plea agreement, [his] rights to appeal have been significantly

restricted.” See Supp. App. 15. The District Court’s post-sentencing statement is

consistent with standard advice given to defendants regarding notification of the right to

appeal, and made no mention of Warner’s plea agreement or any intention to void or

modify it. The District Court’s failure to remind Warner of the specific terms of his plea

agreement did not invalidate the appellate waiver and did not reinstate any rights.1

       This does not end the analysis, however, because we have refused to enforce plea

agreements if doing so would work a manifest injustice even if they were knowing and

voluntary. This exception is exceedingly narrow, and operates only in “unusual



       1
         Khattak left open the possibility that there may be extraordinary cases when a
District Judge’s “post-sentencing remarks suggesting rights other than those specified in
the [waiver] agreement” may “render an otherwise valid waiver unenforceable.” See 273
F.3d at 563 & n.7. Khattak did not actually decide this issue, however, and cited two
cases where such post-sentencing remarks did not void an otherwise valid waiver. Id.
(citing United States v. Flemming, 239 F.3d 761, 763-64 (6th Cir. 2000); United States v.
Fisher, 232 F.3d 301, 303-04 (2d Cir. 2000)). Here, it is clear that we are not faced with
an extraordinary case where the District Court’s post-sentencing remarks rise to the level
of invalidating Warner’s appellate waiver. Warner knew that he was being sentenced
pursuant to his guilty plea, and that his plea agreement contained, inter alia, a waiver of
his right to appeal subject to three exceptions. The District Court’s general comments did
not suggest that the terms of Warner’s agreement were being modified.

                                              7
circumstance[s] where an error amounting to a miscarriage of justice may invalidate the

waiver.” Khattak, 273 F.3d at 562. We have refused to promulgate an exhaustive list of

circumstances in which we might disregard an otherwise valid waiver of appeal,

preferring instead to adjudicate such claims on a case-by-case basis. See id. To make

this determination, we have employed a multi-factor balancing test which takes into

consideration “the 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

government, and the extent to which the defendant acquiesced in the result.” Id. at 563.

The question, then, is whether either or both of Warner’s challenges fit within the

“manifest injustice” exception. We hold that neither one does.

       With respect to Warner’s first argument that the District Court committed a legal

error when it admitted hearsay testimony at sentencing, we need not engage in an

extended weighing of the Khattak factors; it is well established that hearsay – even double

hearsay – is “fully admissible at a sentencing hearing, so long as it has sufficient indicia

of reliability.” United States v. Brigman, 350 F.3d 310, 315 (3d Cir. 2003); see also 18

U.S.C. § 3661 (“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.”); 21 U.S.C. § 850 (same); U.S.S.G. § 6A1.3(a) (“In resolving any dispute

concerning a factor important to the sentencing determination, the court may consider


                                               8
relevant information without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has sufficient indicia of reliability to

support its probable accuracy.”). Admission of reliable hearsay at sentencing is also

permissible under the Confrontation Clause. United States v. Robinson, 482 F.3d 244,

246-47 (3d Cir. 2007). Here, the District Court did not err in admitting hearsay testimony

at sentencing. The detail and internal consistency of the transcribed interviews, as well as

their consistency with Warner’s own testimony, provided sufficient indicia of reliability.

       The same result obtains with respect to Warner’s challenge that the District Court

committed clear error in finding that Warner served as a “manager or supervisor” of the

conspiracy. Facts pertinent to the Guidelines are determined by a preponderance of the

evidence. United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006). Here, there was

evidence that Warner participated in a conspiracy involving at least five participants, and

that Warner exercised decisionmaking authority, received a large share of the fruits of the

crime, participated in the planning of the offense by generating counterfeit checks, and

recruited at least one member of the conspiracy. Thus, the District Court did not err in

finding by a preponderance of the evidence that Warner was a “manager or supervisor” of

the conspiracy.

                                              IV.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                               9
