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


7-19-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4665




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 04-4665

                           UNITED STATES OF AMERICA

                                           v.

                                 GEORGE BILUNKA,

                                           Appellant

                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (Crim. No. 04-cr-00017-2E)
                       District Court: Hon. Maurice B Cohill, Jr.

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 11, 2006

             Before: SLOVITER, McKEE, and RENDELL, Circuit Judges


                                 (Filed: July 19, 2006)


McKEE, Circuit Judge.

      George Bilunka appeals from the judgment of sentence that was imposed

following the guilty plea he entered pursuant to an agreement with the government. He

argues that his agreement should not be enforced because he was denied effective counsel

in violation of the Sixth Amendment, and his guilty plea was therefore not a knowing,




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voluntary and intelligent waiver of his appellate rights, or the rights guaranteed under the

Constitution. For the following reasons, we will affirm the judgment of sentence.

                                                I.

          Inasmuch as we write primarily for the parties, we need not recite the factual or

procedural background of this case. We need only note that Bilunka entered a plea

agreement in which he acknowledged violating 26 U.S.C. §5861 (d).1 App. at 25.

Pursuant to that agreement, Bilunka admitted that the offense involved at least one

destructive device as defined under 26 U.S.C. §5845 (a), and waived certain appellate

rights he would otherwise have had to challenge his sentence.2 App. at 25-29.

          At sentencing Bilunka presented evidence that supported his contention that he

was not aware of the presence of the destructive devices in his home. However, the

district court found that the incident involved at least one destructive device, and applied

a two point enhancement pursuant to U.S.S.G. §2K2.1(b)(3). The court thereafter

sentenced Bilunka to 33 months in prison followed by a term of supervised release. App.

at 143.



1
  Although in the plea agreement Bilunka admitted that the crime involved at least one
destructive device, he reserved the right to argue against the application of the two level
enhancement pursuant to §2K2.1(b)(3). App. at 28.
2
  Bilunka waived his right to appeal his conviction and sentence unless (1) the United
States appealed from the sentence; (2) the ultimate sentence exceeded the applicable
statutory limits or if the district court erroneously departed upward from the guideline
range; and (3) if limited to the issue of whether the district court erroneously applied the
two level increase in the offense guideline under §2K2.1(b)(3) about which the parties
reserved the right to advocate their positions. App. at 26-27.

                                                2
       Bilunka now appeals that sentence arguing that he never intended to take

responsibility for any of the destructive devices although he stipulated to them being

found in his home. Rather, he claims that he wanted to argue against the two point

enhancement, but refrained from doing so based upon assurances of defense counsel.

                                            II.

       Prior to the accepting a guilty plea, the district court must conduct an appropriately

thorough inquiry to ensure that a defendant’s plea is a knowing, voluntary and intelligent

waiver of rights. See Fed. R. Crim. P. 11 (b); United States v. Wilson, 429 F.3d 455, 459

(3d Cir. 2005). Here, the record confirms that the district court thoroughly engaged in an

active colloquy and determined that Bilunka understood the crime he was pleading guilty

to, the possible consequences, and that he was waiving his right to appeal absent certain

very limited circumstances, none of which are present.    The court concluded that the

waiver contained in the plea agreement and the guilty plea itself were entered into after

consulting counsel and that they were voluntary and knowing waivers of his

constitutional and appellate rights.

       The district court was careful to ask Bilunka if he understood the various aspects

of the charge against him and the plea he was about to enter. Bilunka’s responses

confirm that he understood the rights he was agreeing to waive, and that he was satisfied

with the representation and assistance provided by counsel. See App. at 34-54. Moreover,

although Bilunka continues to argue that he should not be held responsible for the

“destructive device” that resulted in a two point enhancement under the Guidelines, the

                                             3
court carefully informed him that the ultimate sentence and the applicability of any

enhancement was left to the final determination of the court and that the court was free to

reject defense counsel’s argument and recommendation. The court explained: “I am not

going to say you wouldn’t get a two-level increase, but that would be decided by me after

I hear from the lawyers and whatever evidence or legal arguments they want to present.”

Ap. 52-53.

       We have previously stated: “[w]aivers of appeals, if entered into knowingly and

voluntarily, are valid, unless they work a miscarriage of justice.” United States v.

Khattak, 273 F.3d 557, 563 (3d Cir. 2001). There is no rigid formula to determine

whether a “miscarriage of justice” has occurred. However, one of the factors that we

consider is “the extent to which the defendant acquiesced in the result” he is now

contesting. Id. at 563, citing United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001).

Given the Rule 11 colloquy here, the offense Bilunka pled guilty to, and the sentence that

was imposed, we are satisfied that no miscarriage of justice has occurred.

       Moreover, we have also explained that “[a] criminal defendant may not attack the

competence of counsel on a direct appeal, but should pursue the issue through 28 U.S.C.

§2255. . . [habeas] actions.” Government of the Virgin Islands v. Zepp, 748 F.2d 125, 133

(3d Cir. 1984). Direct appeals simply do not allow for the developed record that is so

important to a proper resolution of a Sixth Amendment claim. Id. at 133.        “Oft-times

such claims involve allegations and evidence that are either absent from, or not readily

apparent from, the record.” United States v. Gambino, 788 F.2d 938, 950 (3d Cir. 1986).

                                              4
Therefore, we will not now address Bilunka’s claim that he entered into his plea

agreement only because of ineffective assistance of counsel.

                                           III.

      For the reasons set forth above, we will affirm the district court’s judgment of

sentence.




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