                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 08-1887
                                 _____________

                        UNITED STATES OF AMERICA

                                         v.

                           JAMES MONYA CARTER,
                                             Appellant
                               _____________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                      District Court No. 2-06-cr-00387-001
                 District Judge: The Honorable Gary L. Lancaster

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 May 10, 2011

         Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges

                             (Filed: May 24, 2011)
                            _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

      James Monya Carter pleaded guilty, consistent with the terms of a written

plea agreement, to the first count of a three-count indictment, i.e., knowingly and

intentionally distributing five grams or more of a substance containing a detectable
amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B)(iii). The District Court determined that Carter’s offense level was 25

and that his criminal history category was III, yielding a guidelines range of 70 to

87 months.        The District Court sentenced Carter to, inter alia, 70 months

imprisonment. This timely appeal followed.1

          Carter contends that the District Court committed procedural error because it

incorrectly computed Carter’s criminal history category. He also asserts that his

sentence should be vacated and this matter remanded so that he may be

resentenced in accordance with the Fair Sentencing Act of of 2010. See Pub. L.

No. 111-220, 124 Stat. 2372 (2010). The government asserts that Carter waived

his right to challenge the District Court’s sentence. It points out that Carter’s plea

agreement contained a broad waiver of his rights to appeal and to seek collateral

relief.      Because the two issues raised by Carter fall within the scope of the

appellate waiver, we consider whether there is any basis for setting the waiver

aside.

          Carter submits that his appellate waiver should not be enforced because the

District Court did not conduct an adequate colloquy under Federal Rule of

Criminal Procedure 11(b)(1)(N). That Rule mandates that


1
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                            2
       [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 . . . (N) the terms of any plea-agreement provision
       waiving the right to appeal or to collaterally attack the sentence.

Carter is correct that the District Court failed to comply with this mandate. The

Court neither informed Carter of the appellate waiver nor ascertained whether he

understood the terms of the waiver. This was error. United States v. Goodson, 544

F.3d 529, 540 (3d Cir. 2008).

       Carter did not interpose a timely objection, however, to the deficiency in the

Rule 11 colloquy. For that reason, we review for plain error which requires that

we decide “whether there was a violation of Rule 11(b)(1)(N), which warrants

setting an appellate waiver aside.” Id. at 539 (citing United States v. Vonn, 535

U.S. 55, 59 (2002)). This requires consideration of the whole record to determine

if the inadequate colloquy “precluded [Carter] from understanding that he had a

right to appeal and that he had substantially agreed to give up that right.” Id. at

541.

       In this case, the appellate waiver was set forth in the plea agreement. Carter

signed the final page of the plea agreement in the presence of his counsel,

acknowledging that he had read the plea agreement and had discussed it with his

attorney. During the plea colloquy, Carter affirmed that he had an eleventh grade

education and was able to read the English language. Although the District Court

                                          3
did not discuss the appellate waiver during the change of plea colloquy, the

prosecutor’s summary of the terms of the plea agreement indicated that it

contained an appellate waiver. The prosecutor accurately recited the terms of the

waiver, including the three exceptions.        Carter agreed with the government’s

summary of the terms of the plea agreement. Furthermore, Carter had two prior

convictions. This criminal history suggests that, prior to this criminal proceeding,

Carter was aware of a defendant’s right to appeal. Given these circumstances, we

conclude that the District Court’s error did not affect Carter’s substantial rights.2

      Furthermore, we conclude that enforcement of Carter’s appellate waiver

would not result in a miscarriage of justice. See United States v. Jackson, 523 F.3d

234, 244 (3d Cir. 2008).        His contention that the District Court incorrectly

calculated his criminal history category lacks merit and this court has already

determined that the Fair Sentencing Act is not retroactively applicable. United

States v. Reevey, 631 F.3d 110, 115 (3d Cir. 2010).

      Accordingly, we will affirm the judgment of the District Court.




2
   We recognize that Carter pleaded guilty before this Court issued United States v.
Goodson and that the District Court did not have the benefit of our instruction regarding
the important role that the district courts play “in assuring that the defendants fully
understand the scope and terms of an appellate waiver.” 544 F.3d 529, 540 n.10 (3d Cir.
2008). Nonetheless, we reiterate that Rule 11(b) is mandatory, not hortatory.
Accordingly, district judges must affirmatively endeavor to fulfill its dictates. Id.
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