                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 12-3558
                                 _____________

                        UNITED STATES OF AMERICA

                                        v.

                          MARQUETTA MITCHELL,
                                           Appellant
                              ____________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                     District Court No. 2-11-cr-00116-004
                  District Judge: The Honorable Alan N. Bloch

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              September 9, 2013

          Before: SMITH, ALDISERT, and SLOVITER, Circuit Judges

                           (Filed: September 13, 2013)
                            _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

      Pursuant to a plea agreement, Marquetta Mitchell pleaded guilty to two

counts of violating 21 U.S.C. § 846 by attempting and conspiring to distribute and

to possess with the intent to distribute five kilograms of crack cocaine. The plea
agreement contained a broad waiver of her right to appeal and to pursue collateral

relief. Thereafter, the United States District Court for the Western District of

Pennsylvania sentenced Mitchell to the mandatory minimum of 120 months’

imprisonment.

      Despite the appellate waiver, Mitchell filed a notice of appeal the same day

that she was sentenced.1 Mitchell does not assert that the appellate waiver was

unknowing or involuntary. Nor does she argue that the issue she seeks to raise

falls outside the scope of the appellate waiver to which she agreed. And she does

not directly assert that enforcement of the appellate waiver would result in a

miscarriage of justice. Rather, Mitchell contends that the appellate waiver “was

void from its inception” because it violated public policy. 2 Appellant’s Br. at 19.

If Mitchell succeeds in having the appellate waiver set aside, she also argues that

the District Court erred by finding that she failed to qualify for the safety-valve

provision in 18 U.S.C. § 3553(f)(5) by not making a timely, complete, and truthful

disclosure of all information and evidence concerning the offenses, which would

have permitted the District Court to depart below the mandatory minimum

sentence.3


1
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
2
  The determination of whether an appellate waiver is valid presents an issue of law
subject to plenary review. United States v. Khattak, 273 F.3d 557, 560 (3d Cir.
2001).
3
  We review a District Court’s factual finding under 18 U.S.C. § 3553(f)(5) for
clear error. United States v. Sabir, 117 F.3d 750, 752 (3d Cir. 1997).
                                        2
      In United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001), the defendant

argued that his appellate waiver should be set aside as “contrary to public policy”

because a defendant cannot ever knowingly or voluntarily waive his “right[] to

appeal future errors.” We rejected that argument and held that “waivers of appeals

are generally permissible if entered into knowingly and voluntarily, unless they

work a miscarriage of justice.” Id. at 558.

      Nonetheless, Mitchell argues that appellate waivers are contrary to public

policy and should not be enforceable. She cites the ethical concerns that arise

when defense counsel advises a client about waiving a claim of ineffective

assistance or a prosecutor requires a waiver of the right to raise claims of

ineffective assistance of counsel or prosecutorial misconduct.         See Advisory

Comm. of the Sup. Ct. of Mo., Formal Op. 126 (2009) (listing opinions). Indeed,

we have recognized that ineffective assistance of counsel may be a basis for setting

aside an appellate or collateral review waiver. See United States v. Shedrick, 493

F.3d 292, 298 & n.6 (3d Cir. 2007) (declaring that “[e]nforcing a collateral-attack

waiver where constitutionally deficient lawyering prevented [a defendant] from

understanding his plea or from filing a direct appeal as permitted by his plea

agreement would result in a miscarriage of justice”); see also United States v.

Teeter, 257 F.3d 14, 25 n.9 (1st Cir. 2001) (acknowledging that the miscarriage of

justice concept is “infinitely variable, but, by way of illustration, we would include

within it situations in which appellants claim . . . that the plea proceedings were


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tainted by ineffective assistance of counsel”).

      We decline to adopt the blanket rule Mitchell advocates for several reasons.

See Khattak, 273 F.3d at 562 (“declin[ing] to adopt a blanket rule prohibiting all

review of certain otherwise valid waivers of appeals”). First, invalidating all

appellate waivers because of the ethical concerns pointed out by Mitchell would

“ignore[] that waivers of appeals may assist defendants in making favorable plea

bargains” as they “provid[e] defendants a valuable bargaining chip in the plea

process.” Id. Second, a blanket rule invalidating appellate waivers would fail to

account for the variance in the terms of appellate waivers and that some appellate

waivers may not preclude a defendant from raising an ineffective assistance of

counsel claim. See id at 562-63. Third, setting aside all appellate waivers based

on these ethical concerns would turn a blind eye to our jurisprudence recognizing

that a criminal defendant may thwart enforcement of an appellate waiver by

showing that the ineffective assistance of counsel resulted in a miscarriage of

justice. See Shedrick, 493 F.3d at 298 & n.6. Fourth, Mitchell’s rule fails to

appreciate that ineffective assistance of counsel claims generally are not reviewed

on direct appeal. See United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir.

2003) (citing Massaro v. United States, 538 U.S. 500 (2003)). Finally, the ethical

concerns that arise from waiving a claim of ineffective assistance of counsel, as the

Missouri ethics opinion notes, do not “prohibit a defense counsel and prosecutor

from entering into a plea agreement that involves waiver of other post-conviction


                                         4
rights,” such as the right to appeal. Advisory Comm. of the Sup. Ct. of Mo.,

Formal Op. 126 (2009). Rather, we adhere to the case-by-case evaluation we

embraced in Khattak, which requires determining the validity of each appellate

waiver based on its terms and the circumstances in that case. See 273 F.3d at 563;

see also United States v. Goodson, 544 F.3d 529, 535 (3d Cir. 2008) (instructing

that the “language of a waiver, like the language of a contract, matters greatly”).

      After reviewing the record, we conclude that the sentencing issue Mitchell

seeks to appeal, which does not allege the ineffective assistance of counsel, falls

within the scope of the appellate waiver to which she knowingly and voluntarily

agreed. In light of the circumstances of this case, enforcement of the appellate

waiver would not work a miscarriage of justice. Accordingly, we will enforce the

appellate waiver and will affirm the judgment of the District Court.




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