                                                                 NOT PRECEDENTIAL



                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                       No. 14-3684
                                    ________________

                            UNITED STATES OF AMERICA

                                             v.

                                 DANYEL T. PROCTOR,
                                     a/k/a Proc

                                 DANYEL T. PROCTOR,
                                                           Appellant

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. No. 1-11-cr-00076-004)
                      District Judge: Honorable John E. Jones, III
                                    _____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 19, 2015

       Before: FUENTES, GREENAWAY, JR., and SLOVITER, Circuit Judges.

                               (Opinion filed May 20, 2015)
                                ______________________

                                       OPINION
                                ______________________

SLOVITER, Circuit Judge.


  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Danyel T. Proctor appeals from his judgment of conviction of 228 months

imprisonment which was below the Guidelines sentencing range. Despite Proctor’s

having signed an appellate waiver, he argues that the District Court abused its discretion

because the sentence was allegedly excessive in light of his cooperation with authorities.

We will affirm the District Court’s judgment of conviction.1

                                             I.

       Pursuant to a plea agreement, Proctor pled guilty to five counts of armed bank

robbery in violation of 18 U.S.C. § 2113(a) and (d); one count of bank robbery, in

violation of 18 U.S.C. § 2113(a) and; one count of use of a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c)(1)(A). Proctor, often in concert with other

codefendants, robbed six banks by brandishing a firearm, threatening the lives of bank

employees, forcing bank employees to open the banks’ vaults, and escaping with money

after forcing bank employees into the vaults. The six banks sustained an aggregate loss

of $227,554. The plea agreement provided that Proctor was to receive a three level

reduction of his Offense Level for acceptance of responsibility. The plea agreement also

contained an appellate waiver, by which Proctor gave up his right to a direct or collateral

appeal.

       When the District Judge accepted Proctor’s guilty plea, Proctor said that he “fully

understand[s]” the consequences of the appellate waiver in his plea agreement. App. Vol.

II at 15-16. After the District Court recited the charges to which Proctor would be


1
 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction
under 18 U.S.C. §§ 1291 and 3742(a).
                                             2
pleading, and the prosecutor stated the factual basis for the plea, Proctor stated that he

wished to plead guilty, and the District Court accepted his plea.

       At the sentencing hearing, the District Court addressed the Government’s U.S.S.G.

§ 5K1.1 motion and granted a two-level downward departure. The District Court noted

that Proctor “cooperated immediately after being appointed counsel” and he expressed a

continuing willingness to testify. App. Vol. II at 27. Accounting for the § 5K1.1 motion,

the District Court stated that Proctor’s advisory Guidelines range was 188 to 235 months’

imprisonment on the bank robbery charges. The § 924(c) charge had a separate

mandatory consecutive 84-month term.

       The District Court stated that it had reviewed all of the 18 U.S.C. § 3553(a) factors

and discussed the first factor, “the nature and circumstances of the offense and the history

and characteristics of the defendant,” and sixth factor, “sentence disparities,” on the

record. As to the first factor, the District Court was troubled by the violent nature of the

charged offenses and Proctor’s criminal history, which entailed “repeated use of

weapons.” App. Vol. II at 35. As to the sixth factor, the Court commented that even if it

were to sentence Proctor at the bottom end of the Guidelines range, Proctor’s sentence

should have been significantly longer than the sentences imposed on his codefendants.

Thus, while Proctor’s aggregate sentence under the Guidelines could have been 272

through 319 months, the District Court sentenced Proctor to an aggregate term of

imprisonment of 228 months, of which 144 months represent concurrent terms for




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Proctor’s bank robbery offenses and the remaining 84 months was the mandatory

consecutive term for violation of § 924(c)(1)(A)(ii). Proctor appealed.2

                                              II.

       As noted in the foregoing, Proctor agreed to an appellate waiver. See United

States v. Gwinnett, 483 F.3d 200, 202-03 (3d Cir. 2007). “[W]aivers of appeals are

generally permissible if entered into knowingly and voluntarily, unless they work a

miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001).

However, we have held that appellate waivers “should be strictly construed.” Id. at 562.

In considering appellate waivers, this court looks to several factors in deciding whether

there has been a miscarriage of justice, including: the clarity and gravity of the error; its

character; impact on the defendant and the government; and the defendant’s acquiescence

in the result. Id. at 562-63.

       Proctor’s waiver unequivocally states that “the defendant knowingly waives the

right to appeal the conviction and sentence” and that “[t]his waiver includes any and all

possible grounds for appeal, whether constitutional or non-constitutional, including, but

not limited to, the manner in which that sentence was determined in light of United States

v. Booker, 543 U.S. 220 (2005).” Plea Agreement at 25. During the change of plea

hearing the District Court questioned Proctor about whether he understood that he was




2
  Proctor’s notice of appeal does not appear to be timely under Federal Rule of Appellate
Procedure 4(b). However, Rule 4(b) is not jurisdictional, and the Government’s failure to
raise the issue constitutes waiver. Gov’t of the Virgin Islands v. Martinez, 620 F.3d 321,
327-29 (3d Cir. 2010).
                                               4
waiving his right to appeal, to which Proctor replied “I fully understand.” App. Vol. II at

16. Thus, we conclude that Proctor knowingly and voluntarily waived his right to appeal.

       Proctor claims that if his assistance to the Government is considered, “a

miscarriage of justice occurred when he was sentenced to 228 months in prison.”

Appellant’s Br. at 11. We do not agree. Proctor was the beneficiary of the Government’s

U.S.S.G. § 5K1.1 motion, which reduced his offense level by two levels based on his

cooperation. Proctor’s Offense Level was reduced from 34 to 32, resulting in a

Guidelines range of 188 through 235 months, down from 235 through 293 months, for

counts one through six. The District Court, in an effort to reduce the disparity between

Proctor’s sentence and those of his codefendants, ultimately sentenced Proctor to a term

of 144 months for the bank robberies, which is significantly below the Guidelines range,

and the mandatory consecutive term of 84 months for violation of § 924(c). Proctor’s

lowered sentence accounted for his timely acceptance of responsibility, cooperation with

the Government, and a downward variance to prevent sentencing disparity. There is no

miscarriage of justice in this case that warrants setting aside the appellate waiver.

Accordingly, we do not reach the merits of Proctor’s challenges to the sentence imposed.

                                             III.

       For the foregoing reasons set forth, we will affirm the District Court’s judgment of

conviction.




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