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


6-29-2009

USA v. Joseph Allen
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2741




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-2741


                           UNITED STATES OF AMERICA

                                            v.

                                    JOSEPH ALLEN,
                                                 Appellant


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-07-cr-00467-001)
                        District Judge: Honorable Jan E. Dubois


                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 13, 2009

         Before: AMBRO, ROTH, Circuit Judges and FISCHER * , District Judge

                              (Opinion filed: June 29, 2009)


                                        OPINION


AMBRO, Circuit Judge

       Joseph Allen pled guilty to contempt of court, in violation of 18 U.S.C. § 401(3),



   *
    Honorable Nora Barry Fischer, United States District Judge for the Western District
of Pennsylvania, sitting by designation.
and was sentenced to 25 months’ imprisonment. He now appeals his sentence. We

affirm.1

       Because we write only for the parties, we will recite only those facts necessary to

our disposition. In July 2003, Allen participated in the armed robbery of a Philadelphia

bank by acting as the switch-car driver. He subsequently pled guilty to conspiracy to

commit armed bank robbery, armed bank robbery, and using and carrying a firearm in

connection with a crime of violence, and cooperated with the Government by testifying

against one of his co-conspirators. In addition, Allen informed authorities that his best

friend, Kevin Jenkins, had participated in an unrelated crime involving a carjacking and a

botched bank robbery. At sentencing, the Government moved for a downward departure

from both the applicable Sentencing Guidelines range and the applicable mandatory

minimum sentence based on Allen’s cooperation. Ultimately, Allen was sentenced to 48

months’ imprisonment, despite facing a Guidelines range of 125–135 months.

       In June 2007, Allen was subpoenaed by the Government to testify against Jenkins

at his trial in the Eastern District of Pennsylvania. Through his attorney, Allen advised

the Government and the Court that he would not testify. The District Court conducted a

hearing with Allen outside the presence of the jury at which it informed him that he had

no Fifth Amendment privilege not to testify against Jenkins. It then allowed the




   1
    The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                             2
Government to ask Allen the line of questions it intended to pursue at trial. When Allen

refused to answer any of the Government’s questions, the Court made a finding that Allen

had willfully disobeyed its order. Jenkins was later convicted without Allen’s testimony.

       In August 2007, Allen was indicted by a grand jury in the Eastern District of

Pennsylvania for contempt of court, in violation of 18 U.S.C. § 401(3). Five months

later, Allen pled guilty pursuant to a plea agreement that included a waiver of his right to

appeal (subject to certain exceptions). The Sentencing Guidelines do not provide a base

offense level for § 401(3) violations, but rather direct the parties to apply the Guideline

for the most analogous offense. See U.S.S.G. § 2J1.1 (instructing the parties to apply

U.S.S.G. § 2X5.1 for § 401 violations, which in turn directs the parties to “apply the most

analogous offense [G]uideline”). In calculating Allen’s base offense level, the Probation

Office determined that obstruction of justice was the most analogous offense, and,

accordingly, assigned Allen’s crime a base offense level of 14. See U.S.S.G. § 2J1.2.

The Probation Office applied a two-level reduction for Allen’s acceptance of

responsibility, which, when combined with his criminal history category of IV, resulted in

a Sentencing Guidelines range of 21 to 27 months.

       At his sentencing hearing, Allen argued that he merited a below-Guidelines

sentence because his conduct, even if analogous to obstruction of justice, did not involve

threats or intimidation. The Government argued for an upward departure, contending that

Allen’s offense was “outside the heartland” of § 401(3) violations because he not only



                                              3
disobeyed a court order to testify, but he did so after having received a substantial

reduction of his earlier sentence based on his willingness to cooperate. The District Court

sentenced Allen to 25 months’ incarceration, and he timely appealed.

       Allen’s sole argument is that it was unreasonable to sentence him based on the

offense level for an obstruction of justice violation because his “conduct in refusing to

testify was so [de] minimus that it did not rise to the level of conduct required for a

person to be guilty of obstruction of justice.” Allen’s Br. 8. In response, the Government

contends that it was appropriate to analogize Allen’s conduct to an obstruction of justice

violation, and that, at any rate, Allen’s appellate waiver bars him from challenging his

sentence on that ground.

       We consider three elements when the Government invokes an appellate waiver:

was it “knowing and voluntary”; whether the appellate grounds being raised by the

defendant fall outside the scope of the waiver; and does enforcing the waiver result in a

“miscarriage of justice.” United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008).

The Government has satisfied each of those elements here.

       First, during Allen’s plea colloquy, the Court twice explained the consequences of

the appellate waiver to Allen and each time he acknowledged that he understood them. In

addition, the Court took measures to determine that Allen was competent to make

decisions on his own behalf and that he had discussed the terms of the plea agreement

with counsel prior to entering his plea. That was sufficient to establish that Allen’s



                                              4
waiver of his appellate rights was knowing and voluntary. See Fed. R. Crim. Pro.

11(b)(N) (“Before the [C]ourt accepts a plea of guilty . . . the [C]ourt must address the

defendant personally in open court [and] inform the defendant of, and determine that the

defendant understands, . . . the terms of an plea-agreement provision waiving the right to

appeal . . . .”).

        Second, the specific challenge Allen is bringing does not fall within one of the

waiver’s narrow exceptions. The waiver reserved to Allen the right to appeal his

conviction or sentence if (1) the Government appeals; (2) the sentence he received is

above the statutory maximum; (3) the sentencing judge erroneously departed upward

pursuant to the Sentencing Guidelines; and (4) the sentencing judge imposed an

unreasonable sentence above the final Guidelines range as determined by the Court.

None of those situations exists here.

        Finally, we do not believe that enforcing Allen’s appellate waiver would effect a

miscarriage of justice. The decision to sentence Allen based on an analogy to an

obstruction of justice violation was specifically contemplated by the Application Notes to

§ 2J1.1, which provide that “[i]n certain cases the offense conduct will be sufficiently

analogous to § 2J1.2 (Obstruction of Justice) for that guideline to apply.” U.S.S.G

§ 2J1.1 n.1. Moreover, courts of appeals have affirmed sentences based on analogies to

obstruction of justice violations in similar circumstances. See, e.g., United States v.

Marquardo, 149 F.3d 36, 45–46 (1st Cir. 1998); United States v. Remini, 967 F.2d 754,



                                              5
760 (2d Cir. 1992). Thus, the most Allen can show is that the decision to sentence him by

analogizing his conduct to an obstruction of justice violation was debatable. But a

“waiver of the right to appeal includes a waiver of the right to appeal difficult or

debatable legal issues.” United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001)

(quoting United States v. Howie, 166 F.3d 1166, 1169 (11th Cir. 1999)). Accordingly,

enforcing Allen’s appellate waiver will not work a miscarriage of justice.

                                      *   *   *   *   *

       For these reasons, we will enforce the appellate waiver and affirm the judgment of

the District Court.




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