                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                  _____________

                                    No. 09-3864

                                  _____________

                         UNITED STATES OF AMERICA

                                         v.

                                CALVIN LIGONS,

                                            Appellant
                                  _____________


                  On Appeal from the United States District Court
                            for the District of Delaware
                           (D.C. No. 1:08-cr-00168-001)
                     District Judge: Hon. Joseph J. Farnan, Jr.

                    Submitted Under Third Circuit LAR 34.1(a)
                               September 23, 2010

    Before: MCKEE, Chief Judge, and AMBRO and CHAGARES, Circuit Judges.

                            (Filed: September 27, 2010)

                                 ______________

                                    OPINION
                                 ______________

CHAGARES, Circuit Judge.

     Calvin Ligons appeals from a final judgment of sentence by the United States
District Court for the District of Delaware. For the reasons set forth below, we will

affirm Ligons’s sentence.

                                             I.

       Because we write only for the benefit of the parties, we will only briefly recite the

facts. Ligons was charged with possession of an unregistered, sawed-off shotgun in

violation of 26 U.S.C. § 5861(d), and he pled guilty to that charge on June 11, 2009.

Included in his guilty plea was a waiver of appellate rights, which provided as follows:

               The defendant knows that he has, and voluntarily waives, the right to
       file any appeal, any collateral attack, or any other writ or motion after
       sentencing – including but not limited to, an appeal under Title 18, United
       States Code, Section 3742 or a motion under Title 28, United States Code,
       Section 2255 – except that the defendant reserves his right to appeal based
       on a claim: (1) that defendant’s sentence exceeded the statutory maximum,
       or (2) that his counsel was constitutionally ineffective.

Joint Appendix (“J.A.”) 18. The Guideline range was 110-20 months, and Ligons was

sentenced on September 21, 2009, to 115 months imprisonment, three years of supervised

release, and a $100.00 special assessment.

       The term of supervised release also included several conditions, including that “the

defendant shall participate in a mental health treatment program, at the direction of the

probation officer.” J.A. 5. Ligons filed a timely appeal with this Court, alleging that this

condition of his supervised release was an unconstitutional delegation of judicial power to

the probation officer.

                                             II.



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       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231,

and this Court has jurisdiction under 28 U.S.C. § 1291. Notably, the existence of an

appellate waiver does not impact this Court’s jurisdiction. United States v. Gwinnett, 483

F.3d 200, 203 (3d Cir. 2007).

       In determining whether an appellate waiver is enforceable, this Court exercises de

novo review. United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001). In reviewing

the conditions placed on supervised release, we review for plain error, as Ligons did not

object to his sentencing at the time that it was imposed. United States v. Pruden, 398

F.3d 241, 248 (3d Cir. 2005). In order to provide grounds for reversal, the error must

both be “plain” and affect “substantial rights.” United States v. Heckman, 592 F.3d 400,

404 (3d Cir. 2010). An error affects substantial rights if it “must have affected the

outcome of the district court proceedings.” Id. (quoting United States v. Olano, 507 U.S.

725, 732 (1993)). In addition, the error must “seriously affect ‘the fairness, integrity[,] or

public reputation of judicial proceedings.’” Id. (alteration in original and internal

quotations omitted).

                                             III.

       Before addressing the merits of Ligons’s claim, we must first determine whether

his appeal is barred by the appellate waiver contained in his plea agreement. “[W]aivers

of appeals are generally permissible if entered into knowingly and voluntarily, unless they

work a miscarriage of justice.” Khattak, 273 F.3d at 558. In determining whether a



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waiver is applicable and enforceable, a court should first verify that the waiver was

knowing and voluntary, then determine whether the scope of the waiver covers the appeal

in question, and finally ensure that enforcing the waiver will not result in a “miscarriage

of justice.” United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008).

       Ligons concedes that his waiver was knowing and voluntary and that it covers the

instant appeal, and the record also supports these facts. Our focus, therefore, is on

whether enforcing the waiver in this case will result in a miscarriage of justice. We have

adopted a number of factors to aid our consideration of this issue: “the clarity of the

error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing

guideline, or a statutory maximum), the impact of correcting the error on the government,

and the extent to which the defendant acquiesced in the result.” Khattak, 273 F.3d at 563

(quoting United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001)). Importantly, however,

these factors are only meant to provide guidance, and the ultimate question remains

whether the enforcement of the waiver would cause a miscarriage of justice. Id. Finally,

the miscarriage-of-justice exception should be applied “sparingly and without undue

generosity.” United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005).

       In the present case, we see no miscarriage of justice that would result from

enforcing the appellate waiver contained in Ligons’s plea agreement. Examining the

factors listed above, any error here was far from clear, does not go to a major element of

Ligons’s sentence, would require the Government to seek re-sentencing of Ligons, and



                                                4
was not objected to at the time that the sentence was imposed.

       In addition, to the extent that Ligons argues that any claim of constitutional error is

cognizable under the miscarriage-of-justice exception, this is simply untrue. See, e.g.,

United States v. Lockett, 406 F.3d 207, 214 (3d Cir. 2005) (concluding that an appellate

waiver prevented a defendant from alleging a Sixth Amendment violation under United

States v. Booker). This Court has recognized in the past that constitutional protections

can be waived, and that the right to appeal can be waived as well. Khattak, 273 F.3d at

561. To conclude in this case that any right to appeal constitutional issues could not be

waived, therefore, would be contrary to our clear precedent.

       Finally, despite Ligons’s attempt to conflate the two, there is an important

distinction between a sentence being “based upon” a constitutionally impermissible

criterion and thereby being cognizable under the miscarriage-of-justice exception,

Gwinnett, 483 F.3d at 203, and containing a constitutional error. There is no allegation in

the present case that some constitutionally impermissible criteria formed the basis for the

requirement that Ligons attend mental health counseling; rather, this condition appears to

have been imposed based upon Ligons’s history of anxiety attacks. Ligons does not

challenge the basis for imposing the condition, but instead disagrees with the wording that

was used in imposing it. In this case, that is not sufficient to establish a miscarriage of

justice.

       In sum, as Ligons knowingly and voluntarily waived his right to appeal, and the



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enforcement of that waiver does not work a miscarriage of justice in the present case, he

has waived the right to have this Court consider the merits of his assertion that the

condition placed on his supervised release amounts to an unconstitutional delegation of

judicial power.

                                             IV.

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




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