                                                          NOT PRECEDENTIAL


                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _______________

                                       No. 14-1153
                                     _______________

                             UNITED STATES OF AMERICA

                                              v.

                                   JOHN J. MCELROY,

                                                          Appellant
                                     _______________

                      On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 2-11-cr-00616-001)
                         District Judge: Hon. Lawrence F. Stengel
                                     _______________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   December 9, 2014

      BEFORE: VANASKIE, COWEN AND VAN ANTWERPEN, Circuit Judges

                                  (Filed: February 5, 2015)
                                     _______________

                                        OPINION*
                                     _______________


______________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
COWEN, Circuit Judge.

       Defendant John J. McElroy appeals from the criminal sentence imposed by the

United States District Court for the Eastern District of Pennsylvania. We will enforce the

appellate waiver executed by McElroy and summarily affirm his sentence.

                                              I.

       McElroy pled guilty to seventeen counts of wire fraud (and aiding and abetting wire

fraud) in violation of 18 U.S.C. §§ 1343, three counts of making false statements to obtain a

loan (and aiding and abetting the making of false statements) in violation of 18 U.S.C. §§

1014, and ten counts of engaging in monetary transactions from unspecified unlawful

activity (and aiding and abetting such criminal conduct) in violation of 18 U.S.C. §§ 1957.

As part of the plea agreement, McElroy waived his rights to appeal or collaterally attack

his conviction or sentence except in limited circumstances.

       The District Court sentenced McElroy to 108 months imprisonment and five years

supervised release. The District Court imposed three special conditions of supervised

release: (1) that McElroy participate in a mental health program for evaluation or

treatment; (2) that he report any regular contact with children under the age of eighteen to

the United States Probation Office and that he not obtain employment or volunteer work

including regular contact with children younger than eighteen; and (3) that he comply with

the requirements of the Sex Offender Registration and Notification Act (“SORNA”). He

was also ordered to pay restitution in the amount of $1,491,979.74 as well as a $3000

special assessment. McElroy filed a timely notice of appeal and a motion to correct the

                                              2
sentence. His motion was denied. The government filed a motion to enforce the appellate

waiver and for summary affirmance.

                                              II.

       McElroy’s plea agreement limited his potential appeals to challenging, exclusively,

(1) a sentence exceeding the statutory maximum, (2) an erroneous upward departure from

the Sentencing Guidelines, and (3) an unreasonable sentence above the final Sentencing

Guideline range determined by the District Court. According to McElroy, the appellate

waiver does not bar his appeal because enforcement of the waiver would result in a

miscarriage of justice.1 See, e.g., United States v. Goodson, 544 F.3d 529, 536 (3d Cir.

2009). He contends that the special conditions were patently illegal, unsupported by the

record, and imposed a greater deprivation of liberty than was reasonably necessary. He

further claims that the District Court’s consideration of salacious, out-of-date, and

unfounded allegations infected the entire sentence. However, we conclude that the District

Court’s sentence—and, in particular, the three special conditions imposed by the District

Court—were appropriate and that, in any event, the enforcement of the appellate waiver

would not result in a miscarriage of justice. See, e.g., United States v. Wilson, 429 F.3d

455, 458 (3d Cir. 2005) (indicating that miscarriage of justice exception will be applied

sparingly and without undue generosity).

       Although McElroy’s conviction and sentence arises out of his involvement in a



       1
         The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
possess appellate jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                                              3
mortgage fraud scheme, the District Court did not commit reversible error (or a

miscarriage of justice) by imposing the conditions. See, e.g., United States v. Heckman,

592 F.3d 400, 405 (3d Cir. 2010) (“[O]nly a ‘condition with no basis in the record, or with

only the most tenuous basis, will inevitably violate § 3583(d)(2)’s command that such

conditions involve no greater deprivation of liberty than is reasonably necessary.’” (citation

omitted)); United States v. Pruden, 398 F.3d 241, 248-49 (3d Cir. 2005) (“The § 3553(a)

factors are fairly broad, but they do impose a real restriction on the district court’s freedom

to impose conditions on supervised release. Courts generally cannot impose such a

condition—even one with a clearly rehabilitative purpose—without evidence the condition

imposed is ‘reasonably related,’ that is, related in a ‘tangible way,’ to the crime or to

something in the defendant’s history.” (citation omitted)). More broadly, the District Court

reasonably relied on McElroy’s troubling (and ongoing) history of self-serving and harmful

behavior to decide on an appropriate sentence. See, e.g., United States v. Levinson, 543

F.3d 190, 195 (3d Cir. 2008) (“[W]e are to ensure that a substantively reasonable sentence

has been imposed in a procedurally fair way.”). While serving as a Catholic priest in New

Jersey in the late 1980s, McElroy was convicted of aggravated sexual contact and

endangering the welfare of a child. He was sentenced to five years imprisonment.

Psychological evaluations indicated that McElroy had a manipulative, psychopathic, and

sociopathic personality. In 2007, McElroy and his first wife were divorced, and, during the

course of these divorce proceedings, she claimed that he sexually abused their daughter.

McElroy formally relinquished his parental rights, and the state court prohibited him from

                                               4
any contact with his own daughter. Beginning in 2007, McElroy participated in a

sophisticated and protracted mortgage fraud scheme. Given these circumstances, the

District Court appropriately determined that:

       Mr. McElroy’s adult life has been consistently marked by predatory and
       opportunistic behavior, behavior which drove the sex offenses just as it drove
       the financial fraud offenses. His tendency to commit crimes of opportunity
       has not diminished. The psychologist’s words in the August 1989 evaluation
       are quite revealing: Mr. McElroy’s behavior was “simply an expression of
       his tendency to take what he wanted, when he wanted it.” See PSR ¶ 65.
       Judging by the facts of this case, the psychologist’s words are still true
       twenty-five years later.

(A260.)

                                            III.

       For the foregoing reasons, we grant the government’s motion. We will enforce

McElroy’s appellate waiver and summarily affirm his sentence.




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