                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1240




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Recommended Citation
"USA v. McElveen" (2006). 2006 Decisions. Paper 726.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/726


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                                                                    NOT PRECEDENTIAL

                          UNTIED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT

                                         No: 05-1240

                                             USA

                                               v

                               CARL MCELVEEN, Appellant

                         Appeal from the Untied States District Court
                           for the Eastern District of Pennsylvania

                                District Court No: 03-cr-00542

                        District Judge: Honorable Mary A. McLaughlin

                       Submitted Pursuant to Third Circuit LAR 34.1(a)

                                         July 11, 2006

                     Before: Sloviter, McKee and Rendell, Circuit Judges

                                     (Filed July 20, 2006 )

                                          OPINION

McKEE, Circuit Judge

          Carl McElveen appeals the district court’s judgment of sentence in which the court

sentenced him to 75 months of imprisonment following his guilty plea. The plea was

entered pursuant to a plea agreement in which McElveen waived his right to appeal

absent certain contingencies that are not present. For the reasons that follow, we will

affirm.
       McElveen asks us to review the reasonableness of his sentence pursuant to United

States v. Booker, 543 U.S. 220 (2005). However, as noted, he entered into a plea

agreement in which he expressly waived all his rights to appeal or collaterally attack his

conviction, sentence, or any other matter relating to his prosecution, Supp. App. at 5.

       Such waivers are valid and are strictly construed if entered into knowingly,

voluntarily and intelligently. United States v. Khattak, 273 F. 3d 557, 562-63 (3d. Cir.

2001). Nothing on this record suggests that McElveen’s plea agreement was not entered

into knowingly, voluntarily or intelligently. Thus absent a miscarriage of justice,

McElveen’s waiver effectively deprives us of jurisdiction to review the merits of his

appeal. Id. Here, there is not even a suggestion that enforcing the waiver would result in

any such miscarriage.

       McElveen’s offense level under the Sentencing Guidelines was 23, and his

criminal history category was “V.” This resulted in a sentencing range of 84-105 months

of imprisonment as stated in the Presentence Investigation Report. App. 43. The court

imposed a sentence of 75 months incarceration, which fell below the applicable Guideline

range. There was no upward departure, and the sentence is clearly less than the statutory

maximum.

       McElveen argues that Booker grants the right to appeal the reasonableness of his

sentence despite his waiver. However, an intervening court decision does not negate the

waiver in his plea agreement. United States v. Lockett, 406 F. 3d 207, 213 (3d Cir. 2005).



                                              2
We have held that, despite the sea change that followed in the wake of Booker, we will

enforce the terms of a valid waiver of the right to appeal from a sentence imposed

pursuant to a guilty plea. Id. At 213-14. Moreover, before sentencing, all parties and the

sentencing court recognized the impact of Booker, and understood that the Guidelines had

become advisory. App. 25.

      Accordingly we will affirm the judgment of sentence.




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