                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1810




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"USA v. Hodge" (2008). 2008 Decisions. Paper 1281.
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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT




                   No. 07-1810


        UNITED STATES OF AMERICA

                         v.

                 DEVIN HODGE

                                 Appellant




        On Appeal from the District Court
                 of the Virgin Islands
                  No. 99-cr-00006-3
      District Judge: Hon. Anne E. Thompson




     Submitted under Third Circuit LAR 34.1(a)
               on December 13, 2007


Before: SMITH, NYGAARD and ROTH, Circuit Judges

           (Opinion filed: May 1, 2008)




                  OPINION
ROTH, Circuit Judge:

       Devin Hodge appeals from a final judgment of sentence entered by the District Court

of the Virgin Islands. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We

have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the legality of

a waiver of appeals provision in a plea agreement de novo. United States v. Khattak, 273

F.3d 557, 560 (3d Cir. 2001). For the reasons stated below, we will affirm the judgment

imposed by the District Court.

       On November 22, 2006, Hodge pled guilty to one count in an indictment charging

murder with a firearm and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 924(j)(1).

The written plea agreement filed with, and accepted by, the District Court stated that such

charge “carries a maximum possible sentence of death, and a minimum sentence of any

number of years or life imprisonment.” The plea agreement also contained a waiver of

appeal provision stating, in pertinent part, as follows:

       The defendant is aware that [18 U.S.C. § 3742] affords a defendant the right

       to appeal the sentence imposed. Acknowledging all this, the defendant

       knowingly waives the right to appeal any sentence within the maximum

       provided in the statute(s) of conviction (or the manner in which that sentence

       was determined) on the grounds set forth in [18 U.S.C. § 3742] or on any

       ground whatever, in exchange for the concessions made by the United States

       in this plea agreement. However, if the Defendant is sentenced to a term of



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       life imprisonment, defendant reserves the right to appeal that sentence....

       On March 2, 2007, Hodge was sentenced to 450 months imprisonment, five years

supervised release, no fine and a $100.00 special assessment. On March 8, 2007, Hodge

timely appealed, asserting the following arguments: (1) the District Court committed clear

error by treating the United States Sentencing Guidelines as mandatory rather than advisory,

in contravention of United States v. Booker, 543 U.S. 220 (2005); (2) the District Court

committed clear error when it increased the total offense level by two points on the basis of

Hodge’s role in the offense, thereby implicating a guideline range between 360 months to life

imprisonment rather than the lower guideline range of 325 to 405 months; and (3) the

sentence imposed amounted to a miscarriage of justice rendering Hodge’s waiver of his right

to appeal the sentence unenforceable.

       We conclude that the waiver of appeals provision precludes us from addressing the

merits of Hodge’s appeal. See Khattak, 273 F.3d at 560. First, Hodge does not claim he

misunderstood his waiver, nor does he challenge the language of his plea agreement. See id.

Second, the plea colloquy was in compliance with Federal Rule of Criminal Procedure 11.

See id. at 563. The District Court judge inquired as to Hodge’s understanding of his waiver

and its effects, and Hodge received a sentence well within the terms of his plea agreement.

See id. at 560-61, 563. Third, Hodge presents no set of circumstances that would make his

waiver unknowing or involuntary. See id. at 563. Finally, as we have stated before, “where

a criminal defendant has voluntarily and knowingly entered into a plea agreement in which



                                             3
he or she waives the right to appeal, the defendant is not entitled to resentencing in light of

Booker.” United States v. Gwinnett, 483 F.3d 200, 205 (quoting United States v. Lockett,

406 F.3d 207, 214 (3d Cir. 2005)). Because we see no miscarriage of justice here, we will

enforce Hodge’s waiver of his right to appeal and we do not reach the merits of Hodge’s

claims. See id. at 206.

       For the foregoing reasons, we will affirm the judgement of the District Court.




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