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


3-3-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2490




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"USA v. Montgomery" (2009). 2009 Decisions. Paper 1793.
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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 07-2490

                            UNITED STATES OF AMERICA


                                             v.


                              ARNOLD MONTGOMERY,
                                             Appellant




                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                   (No. 05-cr-00598-8)
                      District Court: Honorable Michael M. Baylson




                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                December 12, 2008


                    Before: McKee, Smith, and Roth, Circuit Judges.

                              Opinion filed: (March 3, 2009)

                                        OPINION

McKEE, Circuit Judge.

       Pursuant to a written plea agreement, Arnold Montgomery pled guilty to one count

of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846,

and one count of aiding and abetting the distribution of cocaine, in violation of 18 U.S.C.
§ 2. Montgomery appeals the sentence of 87 months’ imprisonment and the $5,000 fine

that was imposed, arguing that both resulted from incorrect interpretations of the United

States Sentencing Guidelines. Because we conclude that Montgomery knowingly and

intelligently tendered a valid waiver of his right to appeal his sentence in his plea

agreement, we will affirm.

                                              I.

       We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. See

United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). Nonetheless we have

explained that “we will not exercise that jurisdiction to review the merits of [a

defendant’s] appeal if we conclude that [the defendant] knowingly and voluntarily waived

h[is] right to appeal unless the result would work a miscarriage of justice.” Id.

Montgomery concedes that his plea agreement was the result of a knowing, voluntary and

intelligent waiver. However, he claims that we should reach the merits of his appeal

because enforcing the appellate waiver and allowing the fine and term of imprisonment to

stand would result in a miscarriage of justice.

       In United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001), we identified

various factors to consider when deciding whether to enforce an appellate waiver. They

include inquiring into whether any error was clear, its gravity, the effect of that error on

the parties, and the nature of the error alleged. In Khattak, we also discussed the relative

advantages and disadvantages of a defendant’s decision to waive his/her ability to appeal,



                                              2
and we explained that a valid waiver will be enforced (absent a miscarriage of justice)

regardless of the merits of the appeal. See Khattak, 273 F.3d at 562. The existence of

such an error is an “unusual circumstance.” Id.; see also United States v. Shedrick, 493

F.3d 292, 298 (3d Cir. 2007)(ineffective assistance of counsel at the pleading stage is an

example of a miscarriage of justice sufficient to overcome a waiver-of-appeal provision);

United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000)(citing a sentence in excess of

the statutory maximum or a sentence based on a constitutionally impermissible factor as

example of a miscarriage of justice). Thus, “[a] waiver of the right to appeal includes a

waiver of the right to appeal difficult or debatable legal issues-indeed, it includes a waiver

of the right to appeal blatant error.” Id. (citing United States v. Howle, 166 F.3d 1166,

1169 (11th Cir. 1999)).

       Montgomery argues that the district court misinterpreted U.S.S.G. §§ 4A1.2(k)(1)

and 4A1.1(a), thus counting a 1989 conviction for intentional possession of a controlled

substance toward his criminal history calculation. He also argues that the $5,000 fine

exceeds his ability to pay and that the court acknowledged as much during his sentencing

but nevertheless imposed the fine.1 Neither contention constitutes an extraordinary


       1
         Montgomery’s Presentence Investigation Report concluded: “it does not appear that the
defendant has the ability to pay a fine within the stated guideline range. If the defendant is
incarcerated, payment on a minimal fine or restitution can commence through the Bureau of
Prisons Inmate Financial Responsibility Program.” PSR ¶ 91. The fine range for Montgomery’s
offense is from $10,000 to $3,000,000 pursuant to U.S.S.G. §§ 5E1.2(c)(3) and (c)(4).
        After imposing a $5,000 fine, the district court stated, “I know you don’t have that, but
that will help you get a job while you’re in prison, and you can participate in the Bureau of
Prisons Inmate Financial Responsibility Program payable at $20 a month . . . .” (App. 52.)

                                                3
occurrence of the kind contemplated by Khattak and neither is sufficient to invalidate

Montgomery’s admittedly knowing and intelligent waiver. Accordingly, we will enforce

Montgomery’s appellate waiver and refrain from reaching the merits of his appeal.




                                              II.

       For the reasons stated above, we will affirm the judgment of the District Court.




Montgomery did not object at the time of sentencing.

                                               4
