                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2029




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Recommended Citation
"USA v. Ballard" (2007). 2007 Decisions. Paper 526.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/526


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2029




                           UNITED STATES OF AMERICA

                                           v.

                                RICHARD BALLARD,
                                             Appellant




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            D.C. Criminal No. 03-cr-0810
                              (Honorable Jan E. DuBois)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 23, 2007

       Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN * , Circuit Judges.

                                (Filed: August 29, 2007)




                              OPINION OF THE COURT




   *
    The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.

       Richard Ballard appeals his sentence of 180 months’ imprisonment for possession

with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c) and

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

                                              I.

       After being indicted by a grand jury on a six count indictment, Ballard pled guilty

to three of the counts: possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(c) (Count I); possession of a firearm and ammunition after

having been convicted in state court of a crime punishable by imprisonment for a term

exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count IV); and

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1) (Count VI). The District Court held a plea hearing and accepted

Ballard’s guilty plea to those counts. During the plea hearing Ballard stated he had read,

discussed with his lawyer, and signed the plea agreement and understood that the

preliminary sentencing guideline range was 262–327 months. (App. 52). The sentencing

agreement provided a waiver of appeals, with two exceptions. Ballard could appeal if the

sentence imposed exceeded the statutory maximum, or the sentence imposed was an

erroneous upward departure from the guidelines. (App. 104). Ballard stated that he

understood that his right to appeal was limited to these two claims. (App. 105).




                                              2
         Prior to sentencing, Ballard withdrew his plea and filed a motion challenging the

settlement. The District Court granted Ballard’s motion regarding Count VI, finding he

had not understand the nature of that charge. The District Court held Ballard’s former

counsel was not ineffective in advising him to plead guilty and Ballard had knowingly

and voluntarily pled guilty to the other Counts. (App. 61). The District Court sentenced

Ballard to 180 months’ imprisonment for Count I and 180 months’ imprisonment for

Count IV, to run concurrently. Ballard timely appeals.

                                             II.




         We retain jurisdiction over an appeal where a defendant has signed an appellate

waiver agreement. United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). But we

will not exercise our jurisdiction if we conclude that a defendant knowingly and

voluntarily waived his right to appeal, unless the result would work a miscarriage of

justice. Id; United States v. Shedrik, 2007 WL 2051032 at *4 (3d Cir. 2007) (“In short,

we have jurisdiction over this case, but will generally not exercise it absent compelling

reasons.”).1 Ballard contends his plea was not knowing or voluntary and enforcement of

the waiver would work a “miscarriage of justice” because the plea agreement was based

on a coerced plea that the District Court should have permitted him to withdraw. But

Ballard fails to prove that he did not knowingly and voluntarily enter into the plea


   1
       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                              3
agreement. Ballard and his counsel signed the plea agreement. The appellate waiver was

explained to defendant during the plea hearing. Ballard argues the waiver should not be

enforced due to ineffective assistance of counsel. As noted, the District Court held there

was no ineffective assistance of counsel. (App. 61). We only consider the waiver in

relation to Ballard’s direct appeal. Generally, we only consider ineffective assistance of

counsel claims on collateral review. We see no reason to deviate from our general

practice here. Accordingly, Ballard may raise an ineffective assistance of counsel claim

on collateral review.

       Ballard contends his claims fall within the only two exceptions outlined in the

waiver. These exceptions allow Ballard to appeal only if his sentence “exceeds the

statutory maximum” or the District Court “erroneously departed upward from the

otherwise applicable sentencing range.” Ballard maintains his sentence is illegal because

the District Court sentenced him above the statutory maximum for Count IV. Under

Count IV, Ballard was charged with violating §§ 921(g)(1) and 924(e). Both the written

guilty plea and the transcript of the guilty plea hearing confirm these charges. Because of

Ballard’s prior convictions, the minimum sentence for Count IV was 180 months’

imprisonment. 18 U.S.C. § 924(e). Ballard was sentenced to 180 months, the statutory

minimum.

       Ballard further contends the District Court erroneously departed upward from the

otherwise applicable sentencing guideline range for Count I. The applicable statutory



                                             4
maximum sentence for Count I is 30 years. 21 U.S.C. § 841(a)(1). Under the guidelines,

the District Court calculated Ballard’s applicable guideline range as 188–235 months.

(App. 415, 429). Ballard’s sentence of 180 months on Count I was below the applicable

guideline range.

                                           III.

      For the foregoing reasons, Ballard’s waiver agreement applies and we will affirm

the judgment of conviction and sentence.




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