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


4-26-2007

USA v. Gwinnett
Precedential or Non-Precedential: Precedential

Docket No. 06-1766




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"USA v. Gwinnett" (2007). 2007 Decisions. Paper 1153.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1153


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                                                PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 06-1766


                UNITED STATES OF AMERICA

                                v.

                    ANGELICA GWINNETT,
                                  Appellant


          On Appeal from the United States District Court
                    for the District of New Jersey
                      (D.C. No. 03-cr-00638-1)
          District Judge: Honorable Katharine S. Hayden


            Submitted Under Third Circuit LAR 34.1(a)
                         March 5, 2007

     Before: SLOVITER and AMBRO, Circuit Judges, and
                 BRODY,* District Judge

                      (Filed: April 26, 2007)
                              _____

Chester M. Keller
Office of Federal Public Defender
Newark, N.J. 07102

      Attorney for Appellant




      *
        Hon. Anita B. Brody, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
George S. Leone
Julia S. Epstein
Office of United States Attorney
Newark, N.J. 07102

       Attorneys for Appellee



                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

        Appellant Angelica Gwinnett appeals from the District
Court’s order sentencing her to thirty months’ imprisonment
following her guilty plea. She argues that the District Court
failed to consider all the factors set forth in 18 U.S.C. § 3553(a)
and failed to address the legitimate grounds for mitigation raised
by the defense. The Government responds that we must dismiss
Gwinnett’s appeal for lack of jurisdiction because Gwinnett
waived her right to appeal. We must first consider our
jurisdiction over this appeal in light of Gwinnett’s waiver.

                                 I.

        Gwinnett, a trained accountant who purported to run an
accounts receivable business under the name U.S. Funding
Corporation, falsely represented its assets to investors and,
according to the Government, caused those investors losses
amounting to approximately $2,500,000. At the same time, she
used the receipts for personal purposes but failed to file income
tax returns for 2001 and 2002. She was indicted on fourteen
counts charging wire fraud, mail fraud, obstruction of justice,
and social security fraud. Following negotiations with the
Government, she entered into a plea agreement pursuant to
which she pled guilty on November 15, 2004 to one count of
mail fraud in violation of 18 U.S.C. § 1341 and one count of
attempting to evade federal income taxes for 2001 in violation of
26 U.S.C. § 7201. Following a sentencing hearing on January
30, 2006, Gwinnett was sentenced to the custody of the United

                                 2
States Bureau of Prisons for a term of 30 months. Gwinnett filed
a timely appeal.

        The District Court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. In her statement of subject matter
and appellate jurisdiction, Gwinnett states that this court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). In its brief, the Government counters that “[t]his Court
does not have jurisdiction, even though the judgment is a final
order under 28 U.S.C. § 1291, because . . . Gwinnett waived her
right to appeal in her plea agreement under Fed. R. Crim. P.
11(c)(1)(C), which also restricted her appellate rights under 18
U.S.C. § 3742(a).” (Gov’t’s Br. at 1.) It is important that we
stop to consider this issue because the Government has repeated
this contention in appeals before this court and others.1

        We first considered the validity of a waiver of
appealability provision in a guilty-plea agreement in our decision
in United States v. Khattak, 273 F.3d 557 (3d Cir. 2001).
Khattak had been charged with conspiring to possess with intent
to distribute and to import heroin. Id. at 559. The plea
agreement provided, inter alia, that Khattak would plead guilty
to conspiracy to import heroin and the Government would
dismiss the charge of conspiracy with intent to distribute. Id.
Khattak waived his right to file an appeal, a collateral attack, or
any challenge to the determination of the offense level if the
total offense level determined by the court was equal to or less
than the stipulated offense level. Id. The District Court
questioned Khattak closely as to his understanding of the plea
agreement and the waiver, and then proceeded to sentence
Khattak, after departing downward. Id. at 560. Khattak then
appealed, contending that waiver-of-appeals provisions are void


       1
         For example, in United States v. Mason, 343 F.3d 893, 893
(7th Cir. 2003), the Seventh Circuit explained, “Although he has
not yet filed his opening brief, the government has moved to
dismiss the appeal, arguing that we lack jurisdiction because
Mason waived his appeal rights as part of a plea agreement. (In
fact a waiver of appeal rights does not deprive us of our appellate
jurisdiction, although it is a ground for dismissing the appeal.)”

                                3
as contrary to public policy. Id.

       We declined to address the merits of Khattak’s appeal.
Id. Instead, we noted that ten other Courts of Appeals had found
waivers of appeals generally permissible and enforceable,
rejected Khattak’s argument that the waiver of appellate rights in
criminal cases contravenes public policy, and concluded that
Khattak had plainly waived his right to appeal. Id. at 560-63.
We then stated we would enforce Khattak’s waiver of his right
to appeal.

       Finally, in the sentence that has given rise to some
question, we stated, “Therefore, we have no jurisdiction to
consider the merits of his appeal of the denial of the minor-role
adjustment. See [231 F.3d] at 711.” The latter citation was to
the decision of the Tenth Circuit in United States v. Rubio, 231
F.3d 709 (10th Cir. 2000). Significantly, however, we did not
dismiss the appeal, as we do when we conclude we have no
jurisdiction. Instead, we affirmed the judgment of the district
court. Khattak, 273 F.3d at 563.

        The court in Rubio did indeed state that because the
defendant in that case had knowingly and voluntarily waived his
right to appeal, “the waiver effectively deprives us of
jurisdiction.” Rubio, 231 F.3d at 711. That statement, however,
has not gone unchallenged, even in the Tenth Circuit. In United
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc), the
Government had argued “that the entry of an enforceable
appellate waiver renders this case moot, thus leaving us without
the requisite case or controversy necessary for subject matter
jurisdiction under Article III of the Federal Constitution.” Id. at
1322. The court emphatically rejected that suggestion, stating
that “[r]egardless of the phrase employed, this case is not moot
because we have the power to grant a legally cognizable remedy
requested by a party - namely, voiding the plea agreement.” Id.
at 1323. Moreover, in language directly on point, the Court
stated:

       Therefore, we hold that this Court has both statutory and
       constitutional subject matter jurisdiction over appeals
       when a criminal defendant has waived his appellate rights

                                    4
       in an enforceable plea agreement. To the extent that
       United States v. Rubio, 231 F.3d 709, 711 & n. 1 (10th
       Cir. 2000), is inconsistent with this holding, we overrule
       it.

Id. at 1324.

        The Court of Appeals for the Sixth Circuit recently
confronted a similar issue to the one presented here, i.e., the
effect of an appellate waiver on the jurisdiction of the appellate
court. In United States v. Caruthers, 458 F.3d 459 (6th Cir.
2006), Caruthers argued that his sentence exceeded the statutory
maximum for his conviction. Id. at 470. The Government in
turn argued that Caruthers had waived the right to appeal his
sentence. Id. The court acknowledged that in a prior case it had
said that a valid appellate waiver leaves it without jurisdiction to
hear a sentencing appeal, citing United States v. McGilvery, 403
F.3d 361, 362-63 (6th Cir. 2005). Caruthers, 458 F.3d at 472
n.6. In Caruthers, it back tracked from that statement, saying
“[t]here are several reasons . . . to read McGilvery for less than
all it might be worth.” Id. It noted that both before and after
McGilvery, it had affirmed sentences challenged by defendants
who had validly waived their appeals. Id. It continued, “[b]y
affirming rather than dismissing the appeals, we necessarily
exercised jurisdiction in these cases, suggesting that an appellate
waiver does not divest this court of jurisdiction. To the extent
that McGilvery conflicts with the earlier decisions, we are bound
by the prior cases.” Id.

       The Caruthers court approvingly cited the Tenth Circuit’s
opinion in Hahn (discussed above) as having “articulated
powerful reasons for concluding that even when defendants
validly waive their appeals, the courts of appeal do indeed have
jurisdiction under both the relevant statutes (28 U.S.C. § 1291
and 18 U.S.C. § 3742(a)(1)) and Article III. See Hahn, 359 F.3d
at 1320-24.” Caruthers, 458 F.3d at 473 n.6. Finally, the
Caruthers court noted the admonishment by the Supreme Court
of the United States that courts not be cavalier in their use of the
term “jurisdictional.” Id. (citing Kontrick v. Ryan, 540 U.S.
443, 455 (2004)). We agree.


                                 5
       We therefore conclude that notwithstanding the statement
in Khattak, this court retains subject matter jurisdiction over the
appeal by a defendant who had signed an appellate waiver. It
could not be otherwise. After all, “a sentence based on
constitutionally impermissible criteria, such as race, or a
sentence in excess of the statutory maximum sentence for the
defendant’s crime, can be challenged on appeal even if the
defendant executed a blanket waiver of his appeal rights.”
United States v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005)
(internal citations omitted). It follows that we have subject
matter jurisdiction over Gwinnett’s appeal notwithstanding her
waiver of appeal. Nonetheless, we will not exercise that
jurisdiction to review the merits of Gwinnett’s appeal if we
conclude that she knowingly and voluntarily waived her right to
appeal unless the result would work a miscarriage of justice.

                                II.

       We proceed to consider whether there is record evidence
that Gwinnett knowingly and voluntarily signed the waiver. The
language of the plea agreement into which Gwinnett entered
pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure is clear as to its purpose and effect to bind Gwinnett,
the Government and the court to its provisions, including the
sentence. It also includes a mutual waiver of appellate rights.
The plea agreement provided:

       As set forth in Schedule A, this Office and Ms. Gwinnett
       waive certain rights to file an appeal, collateral attack,
       and writ or motion after sentencing, including but not
       limited to an appeal under 28 U.S.C. § 3742 or a motion
       under 28 U.S.C. § 2255, which challenges the sentencing
       court’s determination or imposition of the offense level or
       its adoption of any of the binding stipulations in Schedule
       A.

App. at 29.

       Schedule A provides, inter alia:

       Both parties waive the right to file an appeal, collateral

                                 6
      attack, writ, or motion claiming that the sentencing court
      erred in adopting the binding stipulations in this
      agreement. Ms. Gwinnett knows that she has, and
      voluntarily waives, the right to file any appeal, any
      collateral attack, or any other writ or motion after
      sentencing, including but not limited to an appeal under
      18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255,
      which challenges the sentencing court’s determination or
      imposition of the offense level of 19. To the extent that
      any appeal, collateral attack, writ, or motion is barred by
      this paragraph, the parties agree that it should be
      dismissed.

App. at 33-34. The written waiver is comprehensive.

        We next look to the colloquy between the sentencing
judge and Gwinnett during the Rule 11 hearing. See Khattak,
273 F.3d at 563 (“In determining whether a waiver of appeal is
‘knowing and voluntary,’ the role of the sentencing judge is
critical.”) Rule 11 provides:

      (b)(1) Before the court accepts a plea of guilty or nolo
      contendere, the defendant may be placed under oath, and
      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 following:
             ....
      (N) the terms of any plea-agreement provision waiving
      the right to appeal or to collaterally attack the sentence.

       During the Rule 11 hearing the District Court asked
Gwinnett whether she read the plea agreement, discussed it with
her attorney, asked her attorney questions about the agreement,
and came to understand the agreement before signing it.
Gwinnett answered in the affirmative to each question. The
court also asked Gwinnett whether she, at this time, had any
questions for her attorney or the judge concerning the plea
agreement. Gwinnett said that she did not. In addition, the
District Court confirmed that Gwinnett had signed the plea
agreement.

                                7
       The District Court referred to the waiver in the context of
a discussion concerning the effect that United States v. Booker,
543 U.S. 220 (2005) (pending before the Supreme Court at the
time of the Rule 11 hearing) might have on Gwinnett’s right to
appeal her sentence. The court stated:

       Well after you have been sentenced, presumably you
       give[ ] [sic] up your right to appeal, but I understand what
       you are saying. I just don’t want you to be in a position
       to believe that if you read a headline in the next couple of
       months before I sentence you that for – all of a sudden we
       are starting all over again. We are accepting the
       guidelines as binding in this particular case, understood?

App. at 67. Gwinnett answered “Yes.” Id. At the conclusion of
the Rule 11 hearing the District Court stated:

       I make the following findings. I find that Ms. Gwinnett is
       fully competent and capable of entering an informed plea.
       She is aware of the nature of the charges and the
       consequences of the plea. I find that Ms. Gwinnett’s plea
       of guilty is a knowing and voluntary plea that is supported
       by an independent basis in fact contained in each of the
       essential elements of the offense.

App. at 85-86. Furthermore, Gwinnett was present when the
District Court, was in dialog with her attorney, referred to the
“conditional waiver of appeal” on several occasions during the
sentencing hearing. App. at 124, 125, 161, 178, & 190.

        Significantly, Gwinnett concedes that her appellate
waiver was entered knowingly and voluntarily. We are satisfied
that it was. However, Gwinnett contends that the scope of her
appellate waiver is narrow and that it does not encompass the
issue raised in this appeal. More specifically, Gwinnett contends
that unlike the appellate waiver, which focuses on the calculation
of the applicable guideline range and prohibits any challenges to
that calculation or imposition, this appeal concerns the
reasonableness of the ultimate sentence imposed by the District
Court.


                                8
        The Government counters that Gwinnett’s argument is
flawed because once accepted by a court, a Rule 11(c)(1)(C)
plea agreement deprives the sentencing court of the ability to
impose a sentence other than the one agreed upon by the parties
in the stipulation. In this case, the parties agreed to a negotiated
offense level of 19, and the District Court, taking into account
her offense level total and her criminal history category,
sentenced Gwinnett to the lowest possible sentence within that
Guidelines Range - 30 months. Although the District Court
could have been clearer when discussing the possible effect of
the forthcoming decision in Booker, the waiver remains
effective. To the extent that Gwinnett argues her plea agreement
only required the District Court to use the base offense level of
19 (i.e., did not require imposition or the corresponding
sentence), we believe that when Gwinnett signed the plea
agreement—before the Booker decision issued—there was no
ambiguity as to the particular sentence that a base offense level
of 19 would yield. As the Government notes, Gwinnett waived
her right to file an appeal, “claiming that the sentencing court
erred in adopting the binding stipulations in this agreement.”
App. at 34. We follow our precedent requiring adherence to that
waiver.

        In Khattak, 273 F.3d at 563, we explained that “[w]aivers
of appeals, if entered knowingly and voluntarily, are valid,
unless they work a miscarriage of justice.” A few years later, in
United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005), we
were presented with a defendant who argued that the sentence he
received after his plea agreement was inconsistent with the
Supreme Court’s recently issued decision in United States v.
Booker, 543 U.S. 220 (2005). Our rejection of that argument in
Lockett is dispositive of Gwinnett’s argument that the plea
agreement did not foreclose Gwinnett from arguing that post-
Booker the District Court must now consider the § 3553(a)
factors. In Lockett, we held that “where a criminal defendant
has voluntarily and knowingly entered into a plea agreement in
which he or she waives the right to appeal, the defendant is not
entitled to resentencing in light of Booker.” Lockett, 406 F.3d at
214; see also Bownes, 405 F.3d at 637.

       In this case, Gwinnett concedes that her appellate waiver

                                 9
was entered knowingly and voluntarily, and she has failed to
establish that enforcing the waiver will result in manifest
injustice. Furthermore, in her plea agreement Gwinnett
expressly agreed to be bound by the Guidelines in this case, and
the District Court explained that she would not be permitted to
revisit the issue notwithstanding any cases that may follow the
Supreme Court’s decision in Blakely v. Washington, 542 U.S.
296 (2004). Accordingly, we conclude that Gwinnett waived her
right to the present appeal and do not reach the merits of her
remaining claims.

                              III.

       For the reasons stated above, we will affirm the judgment
of the District Court.
__________________




                               10
