                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3472




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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                      No. 05-3472
                     ____________

           UNITED STATES OF AMERICA

                            v.

                   JASON BROWN,
                a/k/a Jayson T. Browns,
                    a/k/a Jay Brown,
                  a/k/a James Brown,
                  a/k/a Jason Browne,

                     Jason Brown,
                              Appellant.

                      __________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                   (No. 04-cr-00505)
      District Judge: Honorable Gene E.K. Pratter
      Submitted Under Third Circuit LAR 34.1(a)
                  September 26, 2006


Before: RENDELL, CHAGARES and ROTH, Circuit Judges.
                     ______

              (Filed: November 1, 2006)
                     ____________

              OPINION OF THE COURT
                   ____________
CHAGARES, Circuit Judge.

       Pursuant to a plea agreement, appellant Jason Brown pleaded guilty to seven

counts of bank fraud, in violation of 18 U.S.C. § 1344; thirty-nine counts of false use of a

Social Security number, in violation of 42 U.S.C. § 408(a)(7)(B); and one count of

identity theft, in violation of 18 U.S.C. §§ 1028(a)(3), (b)(2)(B), (c)(3)(A). The District

Court sentenced him to 90 months in federal prison, and this appeal followed. Brown

argues that the District Court erred in its calculation of the offense level under the

advisory Sentencing Guidelines and, in the alternative, he claims that the court’s upward

variance1 was unreasonable. Since we write only for the parties, we do not state the facts

separately. We will dismiss Brown’s appeal insofar as it challenges the District Court’s

calculation of his offense level, and we will affirm the District Court’s decision to impose

an upward variance.

                                              I.

       Brown claims that the District Court improperly calculated the loss amount under

U.S.S.G. § 2B1.1. As the Government points out, though, Brown’s plea agreement

contains an express waiver of his right to appeal the District Court’s sentence. The

agreement provides only three limited exceptions. First, “if the government appeals from

the sentence, then the defendant may file a direct appeal. . . .” Second, the defendant



       1
        This Court describes “post-[United States v. Booker, 543 U.S. 220 (2005),]
discretionary sentences not based on a specific Guidelines departure provision as
‘variances.’” United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006).

                                              2
“may file a direct appeal. . . claim[ing] that [his] sentence exceeds the statutory

maximum.” And third, he “may file a direct appeal. . . claim[ing] that. . . the sentencing

judge unreasonably departed upward from the otherwise applicable sentencing guideline

range.” Relying on this waiver, the Government asks us not to reach the merits of

Brown’s loss-calculation argument.

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

agreement. See 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)).

       Brown’s loss-calculation argument does not fit within any of the exceptions

contained in the agreement. The waiver-of-appeals provision unambiguously states that,

outside of its exceptions, no other “issue may be presented by the defendant on appeal.”

Thus, even under our rule of strict construction, the waiver applies to this issue. See

Khattak, 273 F.3d at 562.

       Brown does not allege that he entered into the waiver unknowingly or

involuntarily, nor does he contend that enforcing the provision would result in a

miscarriage of justice. Indeed, Brown’s attorney never even mentioned the plea

                                              3
agreement in his brief. The Government raised the issue of waiver, but Brown’s attorney

chose not to file a reply brief. Our own review of the record indicates that the District

Court conducted a thorough colloquy in accordance with Rule 11 of the Federal Rules of

Criminal Procedure. It determined that Brown had read the agreement, signed it, and

discussed its contents with his attorney. The court reviewed the terms of the waiver-of-

appeals provision, and Brown assented to them. It also explained that Brown could “get a

longer sentence than [he] may expect” and “that no one c[ould] guarantee. . . what

sentence” the District Court would impose. This colloquy indicates a knowing and

voluntary waiver of the right to appeal. As such, we will enforce the parties’ bargain and

dismiss the appeal to the extent that it challenges the District Court’s loss calculation.

                                              II.

       Brown also contends that the District Court’s 90-month sentence constituted an

unreasonable upward variance from the Guidelines range of 70 to 87 months. As the

Government concedes, the waiver-of-appeals provision in the parties’ plea agreement

does not cover this claim. A challenge to an upward variance falls within the agreement’s

exception for “claims that. . . the sentencing judge unreasonably departed upward from

the otherwise applicable sentencing guideline range.” We therefore proceed to the merits.

       We review the District Court’s sentence for reasonableness. See United States v.

Booker, 543 U.S. 220, 260-61 (2005). A sentencing court acts reasonably when it

meaningfully considers and rationally applies the factors set forth at 18 U.S.C. § 3553(a).

See United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006); United States v.

                                              4
Cooper, 437 F.3d 324, 329-30 (3d Cir. 2006). “The advisory guidelines range is itself

one of the § 3553(a) factors, 18 U.S.C. § 3553(a)(4), and [it] play[s] an integral part in

sentencing decisions.” Cooper, 437 F.3d at 331. Nonetheless, “just as a sentence within

that range is not presumptively reasonable, a sentence outside of it is not presumptively

unreasonable.” Schweitzer, 454 F.3d at 204.

       In the case before us, the District Court engaged in a thorough analysis of the

relevant factors. It then applied those factors in a detailed and thoughtful manner. Its

decision to impose a sentence three months above the advisory Guidelines range was

well-supported, logically explained, and eminently reasonable.

                                             III.

       For the foregoing reasons, we will dismiss the appeal in part, and affirm in part.




                                              5
