                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4659




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"USA v. Higgs" (2008). 2008 Decisions. Paper 1160.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1160


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                                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    Case No: 06-4659

                            UNITED STATES OF AMERICA

                                             v.

                                   ANDRE J. HIGGS,

                                             Appellant


                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             District Court No. 05-CR-00205
                    District Judge: The Honorable Joy Flowers Conti


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    May 22, 2008

            Before: SMITH, HARDIMAN, and NYGAARD, Circuit Judges

                                  (Filed: May 22, 2008)


                                        OPINION


SMITH, Circuit Judge.

       In October of 2004, Andre J. Higgs sold several bricks of heroin to a confidential

informant. In July of 2005, Higgs was charged in a multi-defendant, multi-count

indictment with one count each of possession with intent to distribute less than 100 grams

of heroin in violation of 21 U.S.C. § 841, and conspiracy to distribute and to possess with
the intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 846.

Pursuant to a plea agreement, containing a waiver of his right to file a direct appeal,

Higgs pleaded guilty to the conspiracy count and agreed that the amount of heroin at issue

was “more than 100 grams but less than 400 grams.” At sentencing, Higgs argued that a

state drug conviction for distributing heroin, for which he was incarcerated, should be

considered as relevant conduct. Such a ruling could be advantageous to Higgs because if

the prior state conviction increased his offense level under the sentencing guidelines, he

would then be able under U.S.S.G. § 5G1.3(b) to obtain credit on his federal sentence for

the time already served on his undischarged state sentence and to have his federal

sentence run concurrent to the remainder of that undischarged state sentence.

       The District Court for the Western District of Pennsylvania agreed that Higgs’

state offense was relevant conduct. The Court, however, rejected the argument that

Higgs’ state offense increased his offense level. It explained that Higgs’ offense level

had been calculated on the basis of the stipulation in the plea agreement that the quantity

of heroin was more than 100 grams but less than 400 grams. As a result, the District

Court refused to give Higgs credit for all of his time in state custody. The Court

sentenced Higgs to 70 months of imprisonment. Consistent with U.S.S.G. § 5G1.3(c), the

District Court exercised its discretion and imposed Higgs’ 70 month sentence to run

partially concurrent with his undischarged state sentence from the date of his guilty plea,

thereby giving Higgs credit for four months of imprisonment already served on his



                                              2
undischarged state sentence.

       Despite Higgs’ waiver of his right to appeal, this appeal followed.1 He concedes

that his appellate waiver was knowing and voluntary. Nonetheless, Higgs argues that the

waiver should be set aside because the District Court erred by failing to give him full

credit for the time already served on his undischarged state sentence and this error

resulted in a miscarriage of justice.

       In United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001), we held that

“waivers of appeals, if entered into knowingly and voluntarily, are valid.” We

acknowledged that “there may be an unusual circumstance where an error amounting to a

miscarriage of justice may invalidate the waiver.” Id. at 563. We fail to see any error by

the District Court, however, which would warrant setting aside Higgs’ sentence. In our

view, the District Court properly applied U.S.S.G. § 5G1.3. The District Court also gave

Higgs a not insignificant “break” by according him partial credit for the period of

imprisonment already served on his undischarged state sentence.

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




       1
         The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v.
Cooper, 437 F.3d 324,327-28 (3d Cir. 2006).
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