                                             PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                        No. 12-4523
                        ___________

             UNITED STATES OF AMERICA

                              v.

                    CRAIG A. GRIMES,

                                     Appellant
                        __________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                  (D.C. No. 12-cr-00019)
         District Judge: Honorable Yvette Kane
                      ___________

                Argued November 13, 2013
            Before: HARDIMAN, SHWARTZ,
               and SCIRICA Circuit Judges.

                  (Filed: January 7, 2014)

Stephen R. Cerutti, II [Argued]
Joseph J. Terz
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
       Attorneys for Plaintiff-Appellee

Peter Goldberger [Argued]
50 Rittenhouse Place
Ardmore, PA 19003
       Attorneys for Defendant-Appellant

                        ____________

                          OPINION
                        ____________

HARDIMAN, Circuit Judge.

       In United States v. Khattak, 273 F.3d 557 (3d Cir.
2001), we upheld the validity of a defendant’s waiver of
appellate rights following his guilty plea. This appeal presents
the novel question of whether a waiver of certain post-
conviction rights nullifies an appellate waiver. We hold that it
does not.

                               I

      In January 2012, Craig A. Grimes, a former professor
of materials science and engineering at Pennsylvania State
University and the sole owner of three research companies,
agreed to plead guilty to a three-count information charging
him with: wire fraud, in violation of 18 U.S.C. § 1343; false
statements, in violation of 18 U.S.C. § 1001; and money
laundering, in violation of 18 U.S.C. § 1957. The charges



                               2
stemmed from Grimes’s fraudulent conduct involving federal
science grants. In brief, Grimes secured grants for which he
was ineligible, stated that he would use one grant to conduct
research that never actually occurred, and used grant money
for personal and non-grant-related purposes.

       Grimes and his attorney signed a plea agreement in
which the Government indicated that his advisory sentencing
range under the United States Sentencing Guidelines would
be 41 to 51 months in prison. The plea agreement also
contained the following waiver of Grimes’s direct and
collateral appeal rights:

       [T]he defendant knowingly and voluntarily
       waives the right to appeal any conviction and
       sentence imposed by the Court . . . provided
       that the sentence is below or within the
       guideline range determined by the Court. The
       Defendant also knowingly and voluntarily
       waives the Defendant’s right to challenge his
       guilty plea, 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.

Above Grimes’s signature on the last page of the agreement
was an acknowledgement stating that he had read the
agreement, carefully reviewed it with his attorney, understood
it, and voluntarily agreed to it. Above his attorney’s signature
was an acknowledgement that she too had carefully reviewed
every part of the agreement with her client and that, to her
knowledge, Grimes’s decision to enter into it was informed
and voluntary.



                               3
        In February 2012, Grimes pleaded guilty before United
States Magistrate Judge Martin Carlson.1 During his plea
colloquy, Grimes confirmed under oath that he was 56 years
old, had a Ph.D., and was satisfied with the representation his
counsel had provided. He stated that he understood the
charges against him, as well as his rights and his potential
defenses. He waived his right to an indictment and to a jury
trial. Grimes also represented that he had voluntarily signed
the plea agreement and had enough time to review it with his
attorney before signing it. Finally, Grimes stated that no one
had pressured him to sign the agreement, said he was signing
it of his own free will, and acknowledged that no one could
guarantee how the District Court would sentence him. The
Magistrate Judge summarized the charges, potential penalties,
and sentencing guidelines, ensuring that Grimes understood
them.

       The Magistrate Judge then specifically discussed the
appellate waiver with Grimes:

       THE COURT: Now, ordinarily you would have
       the right to later bring proceedings such as a
       direct appeal or a collateral challenge to
       challenge your conviction and sentence. Do you
       understand that this plea agreement has
       provisions in it which limit[] your ability to take
       an appeal?

       GRIMES: Yes, Your Honor.


       1
         Grimes consented to proceed before a magistrate
judge for the purpose of entering a guilty plea, pursuant to 28
U.S.C. § 636(b).



                               4
THE COURT: And I’m directing your attention
to paragraph 24 on page 16 of the written plea
agreement.

GRIMES: Yes, Your Honor.

THE COURT: Did you review that paragraph
specially with counsel?

GRIMES: Yes, sir, I did.

THE COURT: And did you voluntarily agree to
waive those appellate rights?

GRIMES: Uh-huh, yes, sir.

THE COURT: And what I note is that
paragraph provides that you would waive
appellate rights with the exception of any
sentence that might exceed the guideline
imprisonment range, and that you would also
waive any right to collaterally challenge any
sentence in a proceeding brought under Title 28
of the U.S. Code, Section 2255, with the
exception of a sentence that might exceed the
guideline imprisonment range. That is my
understanding of the waiver in this case. Is that
correct, [Assistant U.S. Attorney]?

ASSISTANT U.S. ATTORNEY:                That   is
correct, Your Honor.

THE COURT: And is that your understanding
of the waiver, Mr. Grimes?




                       5
      GRIMES: Yes, sir.

      THE COURT: And did you voluntarily waive
      that right after discussing with your attorney
      your right to appeal and the nature of what you
      were giving up in that paragraph?

      GRIMES: Uh-huh, yes, sir, I did.

The Magistrate Judge accepted Grimes’s plea, finding it
knowing and voluntary, and issued a report recommending
that the District Court do the same. In March, Chief District
Judge Yvette Kane adopted the report and accepted the guilty
plea.

        In November 2012, the District Court sentenced
Grimes to 41 months’ imprisonment, at the bottom of the
Guidelines range of 41 to 51 months. After announcing the
sentence, the District Court reminded Grimes that although he
had a right to appeal, he had limited that right under the
waiver in the plea agreement. “These waivers are usually
enforceable, but if you believe that the waiver you executed
in this case is unenforceable, you are entitled to present that
theory to the appellate court,” the District Court said. This
timely appeal followed.2

                              II

       Grimes argues that we should find his appellate waiver
invalid and address the merits of his appeal. He contends that

      2
        The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291.



                              6
his appellate waiver was not knowing and voluntary because
it contained a waiver of his right to collaterally challenge his
guilty plea, conviction, or sentence that did not exempt Sixth
Amendment ineffective assistance of counsel claims.
According to Grimes, he could not have knowingly and
voluntarily agreed to waive his appellate rights because his
trial counsel faced an inherent, actual conflict of interest in
negotiating and advising him on the waiver. Grimes insists
that this conflict pitted his own interest as a criminal
defendant against his attorney’s reputational and professional
interest in avoiding future ineffective assistance of counsel
claims. Grimes also argues that even if we find his appellate
waiver to be knowing and voluntary, we should still refuse to
enforce it to avoid a miscarriage of justice. The Government
urges us to enforce the waiver and dismiss this appeal.

       A criminal defendant may knowingly and voluntarily
waive many fundamental constitutional rights, including the
right to a jury trial, the right to confront and cross-examine
witnesses, and the right against self-incrimination. Khattak,
273 F.3d at 561 (citing United States v. Mezzanatto, 513 U.S.
196, 201 (1995)). The ability to waive statutorily created
rights, such as the right to appeal a criminal conviction,
logically flows from a defendant’s ability to waive
constitutional rights. Id. Thus, “[w]e will enforce an appellate
waiver and decline to review the merits of an appeal where
we conclude (1) that the issues [the defendant] pursues on
appeal fall within the scope of his appellate waiver and (2)
that he knowingly and voluntarily agreed to the appellate
waiver, unless (3) enforcing the waiver would work a
miscarriage of justice.” United States v. Wilson, 707 F.3d
412, 414 (3d Cir. 2013) (internal quotation marks omitted).




                               7
We review the validity and scope of an appellate waiver de
novo. Id.

        Here, there is no dispute regarding the scope of
Grimes’s appellate waiver following the imposition of his
within-Guidelines sentence. Thus, we turn to whether Grimes
knowingly and voluntarily waived his right to appeal and
whether enforcing the waiver would be a miscarriage of
justice.

                              A

       Grimes claims that his waiver was not knowing and
voluntary because his attorney’s alleged conflict of interest
left him without “the effective assistance of counsel to which
he was entitled in connection with the negotiation and entry
of a guilty plea.” Grimes Br. at 22. Grimes does not seek to
withdraw his plea, but challenges only the waiver.

        We have not directly addressed whether ineffective
assistance of counsel in the negotiation of an appellate waiver
renders that waiver invalid, although we have suggested that
it could. See United States v. Mabry, 536 F.3d 231, 243 (3d
Cir. 2008) (noting the absence of allegations that counsel was
ineffective “in negotiating the very plea agreement that
contained the waiver”); United States v. Shedrick, 493 F.3d
292, 298 & n.6 (3d Cir. 2007) (noting that “[e]nforcing a
collateral-attack waiver where constitutionally deficient
lawyering prevented [defendant] from understanding his plea
. . . would result in a miscarriage of justice”).

       Grimes claims he was “adversely affected by his
attorney’s actual conflict of interest in that counsel had to
advise the client whether to waive all claims on collateral




                              8
attack, including the client’s right to challenge the attorney’s
own ineffective assistance, where it might well be in [his]
interests to preserve the opportunity to advance such a
challenge.” Grimes Br. at 27. He attempts to bootstrap that
challenge to his waiver of collateral rights onto his appellate
waiver with the declaration that the two waivers are
“intertwined.” We are unpersuaded.

       In our view, waivers of appellate rights and collateral
attack rights are analytically distinct. Even accepting for the
sake of argument Grimes’s contention that it is an
impermissible conflict of interest for a lawyer to negotiate “a
guilty plea that purports to waive all claims affecting the
conviction or sentence, not excluding ineffective assistance of
counsel, including those claims which might involve that
same lawyer’s performance,” Grimes Br. at 25–26, a conflict
exists only insofar as the waiver prevents us from hearing
claims we would otherwise hear. As we have noted,
ineffective assistance claims are rarely cognizable on direct
appeal. United States v. Morena, 547 F.3d 191, 198 (3d Cir.
2008). Thus, unless the record in Grimes’s case shows “an
actual conflict of interest [that is] clear on the record,” id.
(citing Gov’t of the Virgin Islands v. Zepp, 748 F.2d 125,
133–34 (3d Cir. 1984)), we would not entertain his ineffective
assistance claim at this stage, waiver or not.

       This appeal is unlike the situation we confronted in
Zepp, where we reached the merits of an ineffective
assistance of counsel claim based on conflict of interest on
direct appeal. There, the ineffective assistance claim was
cognizable on direct appeal because defense counsel’s actions
in the proceedings below “put the trial court on notice with
respect to the issue of conflict of interest” and provided
sufficient information for review. Zepp, 748 F.2d at 134 &



                               9
n.9. By contrast, the record in Grimes’s appeal is devoid of
any allegation of conflict of interest. Grimes faults the
Magistrate Judge who conducted his plea colloquy for not
inquiring, sua sponte, into a potential conflict of interest, but
he cites no precedent to support that imperative in this factual
context. Grimes also asserts conclusorily that the alleged
conflict adversely affected him, but does not specify what he
would have done differently had he been aware of the
purported conflict. He seeks only to negate the waiver, not
withdraw his plea, but it is unclear whether the plea would
have been available or how it would have otherwise looked
had the waiver either been excised or reworded in light of
Grimes’s concerns.

        Instead, Grimes asks us to find appellate waivers
invalid per se if they do not “carve out claims of ineffective
assistance concerning the same attorney who counseled the
plea.” Grimes Br. at 28. We undoubtedly will have occasion
to address that issue in another case, but we decline to do so
on these facts.3 We hold merely that Grimes’s waiver of his
right to appeal was knowing and voluntary and that the plea



       3
         In so doing, we acknowledge the ethical concerns
noted by the National Association of Criminal Defense
Lawyers and at least eight states’ legal ethics arbiters. See
National Association of Criminal Defense Lawyers Formal
Opinion 12-02 (Oct. 2012) (“[I]t is NACDL’s position that
defense counsel has an ethical and constitutional duty to
object to and refuse to sign any plea agreement provision that
amounts to a waiver of post-conviction remedies. This
protects the rights of the client to later challenge the
representation of the lawyer.”).



                               10
agreement’s inclusion of a waiver of his collateral attack
rights did nothing to vitiate his valid appellate waiver.

                              III

       Grimes argues in the alternative that even if his
appellate waiver is valid, it should not be enforced because to
do so would constitute a miscarriage of justice. To determine
whether enforcing a waiver works a miscarriage of justice, we
consider

      [T]he clarity of the error, its gravity, its
      character (e.g., whether it concerns a fact issue,
      a sentencing guideline, or a statutory
      maximum), 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.

Khattak, 273 F.3d at 563 (quoting United States v. Teeter,
257 F.3d 14, 25–26 (1st Cir. 2001)). To qualify as a
miscarriage of justice, “[i]t is not enough that an issue [is]
meritorious”; after all, appellate waivers are intended to
preclude review not just of frivolous questions, but of
difficult and debatable legal issues we would otherwise
consider. United States v. Castro, 704 F.3d 125, 136 n.6 (3d
Cir. 2013). Rather, the miscarriage of justice exception to
appellate waivers applies only in “unusual circumstance[s] . .
. with the aim of avoiding manifest injustice.” Id. at 136
(internal quotations and citation marks omitted). In Castro,
for instance, we reached the merits and overturned a
conviction despite an appellate waiver because the record
showed “a complete failure of proof on an essential element
of the charged crime.” Id. at 139. Allowing a conviction to




                              11
stand under those circumstances would have seriously
impugned “the fairness, integrity, and public reputation of our
courts” and constituted a true miscarriage of justice. Id.

       Here, Grimes contends his sentence was unreasonable
compared to the punishment others received for similar or
worse conduct. Specifically, he describes the District Court’s
alleged “failure . . . to give adequate consideration to the need
to avoid unwarranted disparities with defendants in other
cases across different districts” as “a failure to satisfy one of
the most fundamental of the [18 U.S.C.] § 3553(a) factors in
terms of its role in the non-mandatory guidelines world.”
Grimes Br. at 35–36. Grimes argues that he would have
received a lesser sentence if the District Court had more
thoroughly considered his disparity argument.

        Although “there may well be unusual situations in
which an unreasonable sentence, standing alone, could
require invalidating [a] waiver to avoid a miscarriage of
justice,” such situations are rare, especially in light of our
deferential abuse-of-discretion standard for reviewing
sentencing appeals. United States v. Jackson, 523 F.3d 234,
244 (3d Cir. 2008) (finding no miscarriage-of-justice waiver
exception to defendant’s challenge to the reasonableness of
her sentence). This case is not one of those unusual situations,
in large part because it does “not implicate fundamental rights
or constitutional principles.” Mabry, 536 F.3d at 243. Indeed,
Grimes’s challenge to his bottom-of-the-Guidelines sentence
is precisely the type of appeal his appellate waiver was
intended to foreclose. Accordingly, we hold that Grimes’s
miscarriage of justice argument falls well short.




                               12
                             IV

       In sum, we hold that Craig Grimes knowingly and
voluntarily waived his right to appeal his sentence. His valid
appellate waiver is unaffected by the waiver of his right to
collaterally attack his sentence, and to enforce his appellate
waiver would not work a miscarriage of justice. Accordingly,
we will dismiss Grimes’s appeal.




                             13
