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


3-25-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4842




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"USA v. Sabater" (2008). 2008 Decisions. Paper 1390.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 06-4842
                                    _____________

                           UNITED STATES OF AMERICA

                                             v.

                                  TONEY SABATER,

                                                      Appellant
                                    _____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 1:05-cr-00433)
                    District Judge: Honorable Christopher C. Conner
                                     _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                 on March 11, 2008
                                  _____________

          Before: FUENTES, CHAGARES AND ALDISERT, Circuit Judges

                                 (Filed March 25, 2008)

                                    _____________

                                      OPINION
                                    _____________

ALDISERT, Circuit Judge

      Appellant Toney Sabater appeals as unreasonable his sentence of 115 months of

imprisonment imposed by the United States District Court for the Middle District of
Pennsylvania. The Government has filed a motion to dismiss the appeal pursuant to a

waiver of right to appeal in Sabater’s plea agreement. Because we find that Sabater

voluntarily, knowingly and intelligently waived his right to appeal his sentence, we will

affirm the sentence imposed by the District Court.

       Because we write exclusively for the parties and the parties are familiar with the

facts and proceedings below, we will not revisit them here.

                                             I.

       This Court has subject matter jurisdiction over Sabater’s appeal notwithstanding

the waiver of appeal. United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). We

will not exercise that jurisdiction to review the merits of Sabater’s claim, however, if we

conclude that Sabater voluntarily, knowingly and intelligently waived his right to appeal

unless the result would work a miscarriage of justice. Id.

                                             II.

       We are satisfied that Sabater voluntarily, knowingly and intelligently waived his

right to appeal. The plea agreement, signed by Sabater, his attorney and the United States

Attorney, specifically provided:

              32. Appeal Waiver. The defendant is aware that Title 18,
              United States Code, Section 3742 affords a defendant the
              right to appeal the conviction and sentence imposed.
              Acknowledging all of this, the defendant knowingly waives
              the right to appeal any conviction and sentence, including a
              sentence imposed within the statutory maximum, on any and
              all grounds set forth in Title 18, United States Code, Section
              3742 or any other grounds, constitutional or non-
              constitutional, including the manner in which that sentence

                                             2
              was determined in light of United States v. Booker, 125 S. Ct.
              738 (2005). The defendant also waives the defendant’s right
              to challenge any conviction or sentence or the manner in
              which the sentence was determined in any collateral
              proceeding, including but not limited to a motion brought
              under Title 28, United States Code, Section 2255. The
              defendant further acknowledges that this appeal waiver is
              binding only upon the defendant, and that the United States
              retains its right to appeal in this case.

App. A40. The plea agreement also contained an acknowledgment by Sabater that he

reviewed the agreement with his attorney and fully understood it and an acknowledgment

by Sabater’s attorney, Joshua Lock, that he fully reviewed the agreement with his client

and his client fully understood it. Both Sabater and Lock also acknowledged that Sabater

voluntarily entered into the plea agreement. Finally, the plea agreement contained a

merger clause stating that the plea agreement document represented the full and complete

agreement between Sabater and the Government and that no additional promises,

predictions or inducements had been made.1

       When Sabater appeared before the District Court to plead guilty, the District Court


       1
         We are troubled by Lock’s assertion in his response to the Government’s motion
to dismiss that, when explaining the plea agreement to Sabater, he told Sabater that he
retained the right to pursue an appeal. Lock’s assertion reveals that either (a) Lock
incorrectly informed Sabater that he retained the right to appeal even though Lock knew
Sabater was waiving the right in the plea agreement or (b) Lock misrepresented to this
Court the nature of his communications with Sabater concerning the terms of the plea
agreement. Nonetheless, Lock’s statement does not change our conclusion. See United
States v. Shedrick, 493 F.3d 292, 300 (3d Cir. 2007) (“[A]ny erroneous sentencing
information allegedly provided by defense counsel was corrected by the written plea
agreement and the detailed in-court colloquy, both of which accurately stated [the
defendant’s] potential sentence. Given this record, it is inconceivable that [the defendant]
did not know he potentially faced a maximum ten-year prison term.”).

                                             3
questioned Sabater extensively about his understanding of the plea agreement and the

voluntary nature of the agreement. The Government mentioned the waiver of appeal twice

when it summarized the relevant terms of the agreement for the District Court. Sabater’s

attorney then specifically questioned Sabater on his understanding of the waiver of appeal

paragraph of the plea agreement. During this questioning, Sabater stated that he

understood the waiver and that he had reviewed the relevant paragraph of the agreement

with his attorney. The District Court also explained the ramifications of the waiver to

Sabater. The District Court then had Sabater turn to the relevant page of the plea

agreement and ensured that Sabater had discussed the waiver of appeal with his attorney

and fully understood it. Finally, the District Court asked Sabater whether he had any

questions about the waiver of appeal provision. After Sabater indicated that he did not

and indicated that he still wished to enter a plea of guilty, the District Court found that

Sabater was voluntarily, knowingly and intelligently entering such a plea. We therefore

conclude that Sabater’s waiver of appeal was voluntarily, knowingly and intelligently

made.

                                             III.

        As Sabater validly waived his right to the present appeal and Sabater has not

shown that a manifest injustice will result from enforcing the waiver, we decline to

consider the merits of Sabater’s appeal. See Gwinnett, 483 F.3d at 206. The judgment of

the District Court will be affirmed.



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