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


5-22-2009

USA v. Richard Lake
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2482




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Richard Lake" (2009). 2009 Decisions. Paper 1327.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1327


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 08-2482


                           UNITED STATES OF AMERICA

                                          v.

                                RICHARD M. LAKE,

                                                     Appellant


                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. No. 1-07-cr-00323-002)

                   District Judge: Honorable William W. Caldwell


                    Submitted under Third Circuit L.A.R. 34.1(a)
                                on March 10, 2009

          Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges

                            (Opinion Filed: May 22, 2009 )




                             OPINION OF THE COURT




ALDISERT, Circuit Judge.

      Richard Lake (“Appellant”) and his co-conspirators were charged in a seventeen-
count indictment with conspiracy, armed bank robbery and a firearm offense. The

Appellant was named as a defendant in five of those seventeen counts and entered into a

plea agreement with the United States. In that agreement, the Appellant agreed to waive

his right to appeal any sentence imposed within the statutory maximum as well as his right

to appeal the manner in which that sentence was determined. Having now appealed his

sentence, the Appellant contends that the District Court erred in calculating that sentence.

We will enforce the waiver-of-appeal provision because we hold that the Appellant’s

agreement was knowing and voluntary and that imposition of sentence would not amount

to a miscarriage of justice. We will affirm.1

                                                I.

       The Appellant was charged with: (1) aiding and abetting the June 1, 2007, armed

robbery of the M&T Bank, a robbery that netted Lake and his co-conspirators

approximately $20,000; (2) aiding and abetting the July 21, 2007, armed robbery of the

Bank of Hanover, an armed robbery that netted Lake and his co-conspirators more than

$80,000; (3) conspiring to commit armed bank robberies; (4) being an accessory after the

fact to bank robbery; and (5) illegally possessing a firearms silencer. In his plea agreement,

the Appellant agreed to plead guilty to two offenses, Criminal Conspiracy to Commit

Armed Bank Robbery (18 U.S.C. §§ 371, 2113(a) and (d)) and Making and Failing to



       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review the validity of
a waiver de novo. United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).

                                                2
Register a Firearm/Silencer (26 U.S.C. §§ 5822, 5861(f), 5871).

       The Appellant’s plea agreement contained a detailed waiver-of-appeal provision,

which read as follows:

              The defendant is aware that Title 18, United States Code, Section
      3742 affords a defendant the right to appeal the conviction and sentence
      imposed. Acknowledging all of this, the defendant knowingly waives the
      right to appeal any conviction and sentence, including a sentence imposed
      within the statutory maximum, on any and all grounds set forth in Title 18,
      United States Code, Section 3742 or any other grounds, constitutional or
      non-constitutional, including the manner in which that sentence was
      determined . . . . The defendant also waives the defendant’s rights 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, United States Code, Section 2255. 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.
App. 52a-53a.

       The Appellant then re-affirmed the decision to waive his appellate rights at the

time of his guilty plea colloquy, stating three times under oath that he understood he was

forever waiving his right to appeal. App. 71a-72a. The District Court imposed a sentence

of 72 months imprisonment and this appeal followed.

                                             II.

       Defendants are entitled to waive constitutional and statutory rights, including the

right to appeal, provided that they do so knowingly and voluntarily. United States v.

Mabry, 536 F.3d 231, 236-237 (3d Cir. 2008). Accordingly, the United States is entitled

to enforce appeal waivers like the waiver signed by the Appellant. In fact, this Court has



                                             3
upheld the enforceability of appeal waivers almost identical to the one signed by the

Appellant. See id. (upholding a waiver in which the defendant waived “any right ‘to

appeal any conviction and sentence, including a sentence imposed within the mandatory

minimum, on any and all grounds set forth in [18 U.S.C. § 3742] or any other grounds,

constitutional or nonconstitutional’” and 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 [28 U.S.C. § 2255]’”).

       This Court will exercise its jurisdiction to review the merits of a waiver of appeal

even if we conclude that an appellant knowingly and voluntarily waived her right to

appeal because we must still decide if the result would work a miscarriage of justice.

United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). Here, there is no dispute that

the Appellant’s waiver was both knowing and voluntary. The written waiver was signed

both by the Appellant and by his counsel, who certified in writing that the Appellant’s

decision was a voluntary one. This voluntary choice was specifically addressed in the plea

colloquy, where, in the presence of counsel, the Appellant thrice advised the court that he

understood he was waiving his opportunity to appeal his sentence by pleading guilty

under the terms of the agreement. In addition, the Appellant’s counsel admits that the

waiver was knowing and voluntary in his brief before this Court. The only issue,

therefore, is whether or not upholding the waiver would work a miscarriage of justice.

                                            III.



                                             4
       This Court utilizes a common sense approach in determining whether enforcing a

waiver of appeal would result in a miscarriage of justice. Mabry, 536 F.3d at 242 (citing

Khattak, 273 F.3d at 563) (“In the waiver context, we have adopted a common sense

approach in determining whether a miscarriage of justice would occur if the waiver were

enforced”). We look to several factors to make that determination, including: the clarity

of the error, its gravity, its character, the impact of the error on the defendant, the impact

of correcting the error on the government, and the extent to which the defendant

acquiesced in the result. Id. at 242-243 (citing United States v. Teeter, 257 F.3d 14, 25-26

(1st Cir. 2001)).

       The Appellant argues that the District Court erred in the sentencing process in two

ways. First, he contends that the District Court erred by denying him a reduction in

criminal history points for acceptance of responsibility because, although he did test

positive for cocaine four times after his arrest, the Appellant did eventually undertake

successful drug treatment. The Appellant argues that ultimately successful drug treatment

outweighs post-arrest drug use and, therefore, the District Court’s denial of a reduction in

criminal history points constitutes a miscarriage of justice.

       Second, the Appellant argues that the District Court erred by applying a six-point

enhancement to his Guidelines offense level to reflect the fact that the actual robber (the

Appellant was only charged with Conspiracy to Commit Armed Bank Robbery) used a

firearm in the commission of the offense. He argues that it was not reasonably foreseeable



                                               5
that his co-conspirator would use a firearm during the armed bank robbery.

       The Appellant cannot show that enforcement of his appeal waiver would work a

miscarriage of justice. First, the District Court did not err in denying the Appellant a

reduction in criminal history points for acceptance of responsibility. A district court’s

factual determinations under the Guidelines may only be disturbed on appeal if they are

clearly erroneous. Gall v. United States, 128 S.Ct. 586, 597 (2007); United States v.

Grier, 475 F.3d 556, 570 (3d Cir. 2007). While on bail supervision, the Appellant tested

positive for cocaine use on four separate occasions, and twice failed to report for drug

testing as mandated by the conditions of his release. Three of these violations occurred

after the Appellant pled guilty. It is well settled that a district court has discretion to deny

acceptance of responsibility credit to a defendant who indulges in post-plea illegal drug

use. See United States v. Ceccarani, 98 F.3d 126, 129-130 (3d Cir. 1996). The District

Court had wide discretion in determining whether the Appellant was entitled to an

acceptance of responsibility reduction and did not stray beyond the permissible limits of

exercising that discretion.

       Similarly, the District Court did not err in holding that it was reasonably

foreseeable that the armed bank robbery conspiracy would result in the use of a firearm.

It should be noted that the Appellant pled guilty to Conspiracy to Commit Armed Bank

Robbery. Defendants may be held accountable for the use of firearms by others in a

criminal conspiracy whenever that firearms use is “reasonably foreseeable.” U.S.S.G. §



                                                6
1B1.3(a)(1)(B). Not only did the Appellant plead guilty to armed bank robbery, but the

very nature of the crime makes it reasonably foreseeable that a firearm would be utilized

in its commission.

       Finally, the Appellant’s waiver reflects the informed give-and-take of plea

negotiations. In return for this waiver, the Appellant received several benefits under the

plea agreement. He was not convicted of armed robbery charges which carried more

severe statutory penalties, and he was able to earn a sentencing departure through his

truthful cooperation with the government. The sentence imposed on the appellant – 72

months imprisonment – fell more than four years below the minimum Guideline

imprisonment range initially calculated by the probation office. The mere assertion that

other members of the conspiracy received lower sentences or that the actual robber’s

sentence was only 38 months more, is not sufficient to establish a miscarriage of justice.

                                         *****

       We have considered all contentions raised by the parties and conclude that no

further discussion is necessary.

       The judgment of the District Court will be affirmed.




                                             7
