                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4836




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"USA v. Howard" (2009). 2009 Decisions. Paper 1689.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1689


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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 07-4836
                                 ____________

                       UNITED STATES OF AMERICA,

                                       v.

                     ROBERT RAYMOND HOWARD, SR.,
                                  Appellant

                                 ____________

                 On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                             (D.C. No. 06-cr-00138-1)
                 District Judge: Honorable Christopher C. Conner
                                  ____________

                   Submitted Under Third Circuit LAR 34.1(a)
                                March 3, 2009

    Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.

                             (Filed: March 26, 2009)

                                 ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       Robert Howard appeals his judgment of sentence following his guilty plea.

Because Howard waived his appellate rights, we will dismiss his appeal.

       Howard, a convicted felon, pleaded guilty to possessing a firearm in violation of

18 U.S.C. § 922(g)(1). Under the terms of his plea agreement, Howard waived the right

to appeal his sentence. He now challenges the reasonableness of his sentence, arguing

that his appellate waiver was not made knowingly and voluntarily.

       “If done knowingly and voluntarily, a statutorily created right to appeal is

generally held to be waiveable.” United States v. Khattak, 273 F.3d 557, 561 (3d Cir.

2001). Federal Rule of Criminal Procedure 11(b)(1)(N) requires a court to “inform the

defendant of, and determine that the defendant understands . . . the terms of any plea-

agreement provision waiving the right to appeal or to collaterally attack the sentence”

before accepting a plea.

       We have held that “the role of the sentencing judge is critical . . . [i]n determining

whether a waiver of appeal is ‘knowing and voluntary.’” Khattak, 273 F.3d at 563. In

United States v. Gwinnett, 483 F.3d 200, 204-05 (3d Cir. 2007), we found that the

defendant’s appellate waiver was knowing and voluntary where the sentencing judge: (1)

“referred to the waiver in the context of a discussion concerning the effect that United

States v. Booker might have on [the defendant’s] right to appeal her sentence,” and (2)

“referred to the ‘conditional waiver of appeal’ on several occasions during the sentencing

hearing.”



                                              2
      Howard’s counsel argues that his client’s appellate waiver was not knowing and

voluntary because the “District Court made no . . . inquiry regarding defendant’s

understanding of the [waiver’s] significance.” Appellant’s Br. 6. This is false. The

record clearly shows that the District Court engaged Howard in a lengthy plea colloquy,

specifically informing Howard of his appellate rights and the consequences of waiver:

      COURT:        Mr. Howard, ordinarily you would have the right to bring later
                    proceedings such as a collateral attack with a habeas corpus motion
                    to vacate, set aside, or correct your sentence. Do you understand that
                    this plea agreement severely limits your right to appeal and prevents
                    you from using later proceedings like a collateral attack and a habeas
                    corpus petition to challenge your conviction, sentence, or any other
                    matter? Do you understand that?

      HOWARD: Yes, I do.

      COURT:        I direct your attention specifically to paragraph 20 on pages 11 and
                    12 of the written plea agreement. Would you take a look at that for
                    me please?

      COUNSEL: You’re waiving your right to complain that I’m a lousy lawyer. So if
               I screw up, if I make a mistake, if I . . .

      HOWARD: Can’t go back.

      COUNSEL: You can’t go back.

      COURT:        All right. Specifically paragraph 20 states that the defendant is
                    aware that Title 18, Section 3742 of the United States Code affords
                    the defendant the right to appeal the conviction and sentence
                    imposed. However, acknowledging all of this, the defendant
                    knowingly waives the right to appeal any conviction and sentencing,
                    including a sentence imposed within the statutory maximum, on any
                    and all grounds set forth in that section or on any other grounds,
                    constitutional or nonconstitutional, including the manner in which



                                            3
                     the sentence was determined in light of recent Supreme Court
                     decisions.

                     This paragraph also states that the defendant waives his right to
                     challenge any conviction or sentence or the manner in which the
                     sentence was determined in any collateral proceeding, including, but
                     not limited to, a motion brought under Title 28, Section 2255, of the
                     United State Code, and finally this paragraph indicates that the
                     defendant further acknowledges that this appeal waiver is binding
                     only upon the defendant and that the United States retains its right to
                     appeal in this case.

                     So it’s a one-sided deal, and this appeal waiver is applicable only to
                     the defendant. Now, understanding all that, and you’ve reviewed
                     this with your attorney, is that correct?

       HOWARD: Yes, sir.

       COURT:        Is it still your desire to plead guilty?

       HOWARD: Yes.

App. 99-101.

       Counsel’s representation notwithstanding, the thorough plea colloquy leaves no

doubt that Howard knowingly and voluntarily waived his right to appeal. Howard does

not argue (nor could he) that the terms of the waiver allow him to appeal the

reasonableness of his sentence, or that enforcement of the waiver would result in a

miscarriage of justice. See Khattak, 273 F.2d at 563. He merely argues that the District

Court failed to perform a necessary step that the record plainly shows was performed.




                                               4
       Because it was made knowingly and voluntarily, Howard is bound by the waiver of

his appellate rights and we need not address the reasonableness of his sentence. We will

therefore dismiss this appeal.




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