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


4-23-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4525




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                                                      NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                               No. 07-4525




                 UNITED STATES OF AMERICA

                                   v.

                          DARREN SMITH
                also known as DOMINIQUE EVANS
                   also known as DARREN SMITH

                           Darren Smith,
                                    Appellant


           On Appeal from the United States District Court
                   for the District of New Jersey
               (D.C. Crim. No. 2-07-cr-00376-001)
              District Judge: Hon. Stanley R. Chesler


             Submitted Under Third Circuit LAR 34.1(a)
                          April 21, 2009

Before: SCIRICA, Chief Judge, SLOVITER, and FISHER, Circuit Judges

                      (Filed     April 23, 2009 )




                                OPINION
SLOVITER, Circuit Judge.

       Darren Smith, who pled guilty to conspiracy to commit robbery and conspiracy to

commit burglary, appeals his sentence of 188 months incarceration. We will affirm.

                                              I.

       Smith conspired with others to commit at least fifty-five home-invasion robberies

as well as the armed robbery of a jewelry store. In committing the home invasions, Smith

and his co-defendants cut telephone and home alarm wires, forcibly pushed in the front

doors, and stole items that they later illegally sold. With respect to the jewelry store

robbery, Smith gave a semi-automatic pistol to his co-defendant Williams and threatened

to hurt Williams’ mother, daughter, and girlfriend if he did not rob the store.

       Smith pled guilty to conspiracy to commit robbery in violation of 18 U.S.C. §

1951(a) and conspiracy to commit burglary in violation of 18 U.S.C. § 371. In the plea

agreement, the parties stipulated that Smith’s total offense level was twenty-nine and his

criminal category was VI,1 that a sentence “within the Guidelines range that results from

the agreed total Guidelines offense level of 29 (twenty-nine) is reasonable,” and that the

parties would not seek an upward or downward departure or adjustment. App. at 32. In

addition, the plea agreement included an appellate waiver, providing that Smith

“voluntarily waives, the right to file any appeal . . . which challenges the sentence imposed




                    1
                       Smith’s prior criminal record included five felony
             convictions.

                                               2
. . . if that sentence falls within or below the Guidelines range that results from the agreed

total Guidelines offense level of 29.” App. 32. Smith reserved his right to appeal the

court’s determination of his criminal history category, but “if the sentencing court accepts

a stipulation [herein], both parties waive the right to file an appeal . . . claiming that the

sentencing court erred in doing so.” App. at 32.

       At the plea colloquy, the District Court questioned Smith about his stipulations in

order to ensure that he understood their effect on his sentence:

       THE COURT: [The plea agreement] contains some agreements between you
       and the U.S. Attorney’s office about . . . facts which go into calculating . . .
       the guideline sentencing range . . . [. F]or example, you have agreed . . . that
       your total offense level in this case is a level 29.
       THE DEFENDANT: Yes.
       THE COURT: You’ve also agreed . . . that your criminal history category is
       a level six.

App. at 50. In addition, the District Court addressed Smith’s appellate waiver:

       THE COURT: [The plea agreement provides that, i]f I give you a sentence
       which is within the sentencing range for an offense level 29 or lower, you
       will not appeal the sentence or the conviction or make any other type of post-
       conviction attack or challenge on the sentence or conviction. Have you in
       fact agreed to do that?
       THE DEFENDANT: Yes.
       THE COURT: Have you discussed it with [your attorney]?
       THE DEFENDANT: Yes.
              ***
       THE COURT: Have you been satisfied with his explanation of why he has
       recommended that you agree to it?
       THE DEFENDANT: Yes.

App. at 52. The Court then correctly calculated the Guidelines range resulting from a

offense level of twenty-nine and a criminal history category of VI to be 151 to 188 months

                                                3
incarceration.2 The District Court also addressed 18 U.S.C. § 3553(a) factors, concluding

that a substantial sentence was warranted here due to the scale of the conspiracy, its

numerous victims, the need for specific and general deterrence, and the danger that Smith

posed to society as a result of his “lifetime of continued criminal activity.” App. at 102.

       Despite Smith’s agreement to waive his right to appeal his sentence, he now argues

that his sentence is unreasonable.

                                             II.

       “‘Waivers of appeals, if entered knowingly and voluntarily, are valid, unless they

work a miscarriage of justice.’” United States v. Gwinnett, 483 F.3d 200, 205 (3d Cir.

2007) (quoting United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). Smith does not

argue that his plea was not knowing and voluntary. Moreover, the record shows that

Smith discussed the plea agreement and its ramifications with both his attorney and the

District Court, and nothing in the record otherwise impugns the validity of the plea

agreement.

       In addition, there is no question that Smith’s appeal falls within the scope of the

waiver provision, see United States v. Jackson, 523 F.3d 234, 244 (3d Cir. 2008), because

Smith waived the right to “file any appeal . . . which challenges the sentence imposed by

the sentencing court if that sentence falls within or below the Guidelines range that results




                    2
                      Smith’s sentence was calculated pursuant to the May 1,
             2007, edition of the Sentencing Guidelines.

                                              4
from the agreed total Guidelines offense level of 29.” App. at 32. Even though Smith

reserved the right to appeal the District Court’s determination of his criminal history

category, the waiver also provided that he could not appeal any issue upon which the Court

accepted a stipulation between the parties. Because the Court accepted the parties’

stipulation that Smith had a criminal history category of VI, he is precluded from

challenging that determination on appeal.

       Finally, Smith’s case does not present “an unusual circumstance where an error

amounting to a miscarriage of justice may invalidate the waiver.” Khattak, 273 F.3d at

562 (citing United States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001)). Smith challenges

only the reasonableness of his sentence. “[I]n light of Gall’s [Gall v. United States, 128

S.Ct. 586, 596 (2007)] deferential abuse-of-discretion standard for reviewing sentencing

appeals, it will be a rare and unusual situation when claims of an unreasonable sentence,

standing alone, will be sufficient to invalidate a waiver because of a miscarriage of

justice.” Jackson, 523 F.3d at 244. This case clearly does not present any such “unusual

situation.” Id.3

                                             III.

       Because Smith’s appeal is barred by the appellate waiver provision of his plea




                    3
                       The District Court rejected Smith’s request for a waiver
             because of the conditions in the Passaic County Jail. Even if that
             objection were to survive the waiver, we would not disagree with
             the District Court’s disposition.

                                              5
agreement, we will affirm the District Court’s judgment of conviction and sentence.
