BLD-304                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 10-2294
                                    ___________

                          UNITED STATES OF AMERICA

                                         v.

                               BRIAN D’ALFONSO,

                                                       Appellant
                     ____________________________________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. Crim. No. 03-cr-00746)
                     District Judge: Honorable John R. Padova
                    ____________________________________

              Submitted for a Certificate of Appealability or Possible
          Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                               September 30, 2010

          Before: RENDELL, CHAGARES and VANASKIE, Circuit Judges

                          (Opinion filed: October 13, 2010)
                                     _________

                                      OPINION
                                     _________

PER CURIAM

     Brian D’Alfonso appeals from the District Court’s order denying his motions to



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withdraw his guilty plea and for bail. We will affirm. See 3d Cir. L.A.R. 27.4 (2008); 3d

Cir. I.O.P. 10.6.

                                             I.

       In 2004, D’Alfonso pleaded guilty to sixteen counts of mail fraud and four counts

of the sale of unregistered securities in violation of 18 U.S.C. § 1341 and 15 U.S.C. §

77e(a)(2), respectively. His plea agreement contains a provision waiving his right to

appeal and collaterally attack his sentence. On February 2, 2005, the District Court

sentenced D’Alfonso to an aggregate sentence of seventy-five months of imprisonment.

D’Alfonso appealed, and we dismissed his appeal on the Government’s motion to enforce

his waiver of his appellate rights. United States v. D’Alfonso, 3d Cir. C.A. No. 05-1363

(May 27, 2005 order).

       In 2007, D’Alfonso filed a motion under 28 U.S.C. § 2255. He alleged, among

other things, that the prosecution used the perjured testimony of informants Eugene

Carpino and Gabriel Santosusso before the grand jury and failed to disclose certain

criminal conduct that might have been used to impeach them at trial. The District Court

appointed counsel, conducted an evidentiary hearing, and ultimately dismissed

D’Alfonso’s § 2255 motion after finding that his waiver of collateral attack rights in the

plea agreement was knowing and voluntary and that enforcement of the waiver would not

give rise to a miscarriage of justice. We denied a certificate of appealability. United

States v. D’Alfonso, 3d Cir. C.A. No. 08-2298 (Sep. 17, 2008 order).



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       D’Alfonso later filed the motions at issue here, the first of which he captioned as a

“motion to withdraw guilty plea.” D’Alfonso again asserted that the prosecution withheld

evidence concerning Carpino and Santosusso and thereby secured his guilty plea under

“false pretenses.” D’Alfonso also filed a motion for bail or expedited consideration. By

order entered April 29, 2010, the District Court denied both motions. D’Alfonso

appeals.1

                                             II.

       We find no error in the District Court’s denial of D’Alfonso’s motion to withdraw

his guilty plea. The District Court appears to have treated the motion as one under Rule

11 of the Federal Rules of Criminal Procedure. As the District Court explained, the rule

provides that, “after the court imposes sentence, the defendant may not withdraw a plea of

guilt or nolo contendere, and the plea may be set aside only on direct appeal or collateral

attack.” Fed. R. Crim. P. 11(e). The District Court further noted that D’Alfonso already

has filed both an appeal and a collateral attack to no avail. Thus, it concluded that “[w]e

may not set aside Defendant’s guilty plea based on the instant motion.” We agree. See



   1
    We have jurisdiction to review the District Court’s denial of a motion to withdraw a
guilty plea and denial of bail pursuant to 28 U.S.C. § 1291. See United States v. Jones,
336 F.3d 245, 251 (3d Cir. 2003) (motion to withdraw); United States v. Smith, 835 F.2d
1048, 1049 (3d Cir. 1987) (bail). We generally review the denial of a motion to withdraw
a guilty plea for abuse of discretion, see United States v. King, 604 F.3d 125, 139 (3d Cir.
2010), though we exercise plenary review over the District Court’s interpretation of the
Federal Rules of Criminal Procedure. See United States v. Toliver, 330 F.3d 607, 610 (3d
Cir. 2003). We exercise plenary review over the District Court’s denial of bail as well.
See United States v. Barnes, 324 F.3d 135, 140-41 (3d Cir. 2003).

                                             3
also United States v. Garduño, 506 F.3d 1287, 1289-90 (10th Cir. 2007) (deeming motion

to withdraw plea after sentence untimely under Rule 11).

       One further observation is in order. Although D’Alfonso captioned his motion as

one “to withdraw guilty plea,” the District Court might have construed it as another

motion under § 2255. So construed, D’Alfonso’s motion would constitute a second or

successive § 2255 motion that we have not authorized the District Court to consider. See

28 U.S.C. §§ 2244(b)(3), 2255(h). Thus, the District Court would have been obligated to

dismiss the motion or transfer it to this Court to be treated as a § 2244 application for

leave to file a second § 2255 motion. See Robinson v. Johnson, 313 F.3d 128, 139-40 (3d

Cir. 2002). We see no need to remand for such treatment in this case, however, because

the District Court’s treatment of the motion and application of Rule 11(e) effectively

prevented D’Alfonso from circumventing these gate-keeping requirements.

       Finally, we also find no error in the District Court’s denial of bail. D’Alfonso

sought bail under Rule 46(c) of the Federal Rules of Criminal Procedure and 18 U.S.C. §

3143(a), which, as the District Court explained, apply only to bail pending sentencing or

appeal, both of which already have occurred.

       Accordingly, we will affirm the judgment of the District Court. To the extent that

D’Alfonso’s motion to withdraw his guilty plea might be construed as a § 2255 motion,

and to the extent that a certificate of appealability might be required to appeal the denial

of that motion, a certificate of appealability is denied for the reasons stated herein.



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