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


12-15-2008

USA v. Corso
Precedential or Non-Precedential: Precedential

Docket No. 07-3901




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 07-3901


      UNITED STATES OF AMERICA

                       v.

            JOHN D. CORSO, III,

                      Appellant


On Appeal from the United States District Court
   for the Western District of Pennsylvania
            (D.C. No. 06-cr-00389)
 District Judge: Honorable Gary L. Lancaster


          Argued October 1, 2008
       Before: FISHER, CHAGARES
      and HARDIMAN, Circuit Judges.

         (Filed: December 15, 2008)
Candace Cain (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
       Attorney for Appellant

Robert L. Eberhardt
Laura S. Irwin (Argued)
Kelly R. Labby
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Attorneys for Appellee




                 OPINION OF THE COURT


FISHER, Circuit Judge.

       Pursuant to a written plea agreement, John D. Corso, III
pleaded guilty to one count of theft of mail, in violation of 18
U.S.C. § 1708. The District Court sentenced him to twenty-one
months of imprisonment and two years of supervised release.
Corso appeals from the District Court’s judgment of sentence,
arguing that the District Court committed numerous procedural
errors in imposing his sentence and that his sentence is
substantively unreasonable. Because we conclude that Corso
validly waived the right to appeal his sentence, we will affirm.

                               2
                                I.

                                A.

        John Corso worked as a driver for T. Wilson Trucking,
a private company that contracted with the United States Postal
Service to transport mail along certain “highway contract
routes” between Postal Service facilities in Pennsylvania. In
January 2005, postal inspectors determined that rifled mail
found in a collection box in Aliquippa had come from sources
along a contract route handled by Corso. In response, the
inspectors placed a “test letter” containing cash in a bundle of
first-class mail to be transported by Corso to a processing and
distribution center in Pittsburgh.

        The inspectors covertly watched Corso collect the bundle
containing the test letter, but by the time he unloaded his cargo
in Pittsburgh the test letter was missing. After stopping Corso
before he could leave the distribution center, the inspectors
found the test letter, as well as four other stolen letters, in the
cab of his truck. When confronted, Corso first denied any
wrongdoing, but eventually admitted that he had stolen mail on
three or four occasions and that he had taken between five and
twenty-five pieces of mail each time.

                                B.

                                1.

      On November 8, 2006, an indictment was returned in the
Western District of Pennsylvania charging Corso with five

                                3
counts of theft of mail in violation of 18 U.S.C. § 1708, one
count for each of the letters found in the cab of his truck. After
initially pleading not guilty, Corso eventually entered into a plea
agreement with the government. In the agreement, Corso agreed
to plead guilty to Count One of the indictment, acknowledged
his responsibility for the conduct charged in the remaining four
counts, and stipulated that the District Court could consider the
conduct charged in those four counts in imposing sentence. In
exchange for Corso’s guilty plea, the government agreed to
move to dismiss the remaining four counts against him and to
recommend a two-level reduction in offense level for acceptance
of responsibility under § 3E1.1 of the United States Sentencing
Guidelines. The parties made a non-binding stipulation that the
total loss resulting from the offense was $300.00 and agreed that
Corso faced a maximum term of imprisonment of five years and
a maximum term of supervised release of three years.

       The plea agreement also contained an appellate-waiver
provision, which read as follows:

       “8.    John D. Corso, III waives the right to take
              a direct appeal from his conviction or
              sentence under 28 U.S.C. § 1291 or 18
              U.S.C. § 3742, subject to the following
              exceptions:

              (a)     If the United States appeals from
                      the sentence, John D. Corso, III
                      may take a direct appeal from the
                      sentence.


                                4
              (b)    If (1) the sentence exceeds the
                     applicable statutory limits set forth
                     in the United States Code, or
                     (2) the sentence unreasonably
                     exceeds the guideline range
                     determined by the Court under the
                     Sentencing Guidelines, John D.
                     Corso, III may take a direct appeal
                     from the sentence.

              John D. Corso, III further waives the right
              to file a motion to vacate sentence, under
              28 U.S.C. § 2255, attacking his conviction
              or sentence, and the right to file any
              collateral proceeding attacking his
              conviction or sentence.”

Corso and his attorney signed the plea agreement. By signing,
Corso acknowledged that he had read the agreement, had
discussed it with his attorney, and had accepted it.

                               2.

       On June 1, 2007, the District Court held a change-of-plea
hearing, during which it engaged Corso in a colloquy intended
to ensure that he was knowingly and voluntarily entering his
guilty plea and that he understood the contents of his plea
agreement, as required by Federal Rule of Criminal Procedure
11(b). After placing Corso under oath, the District Court
reviewed with him the rights incident to pleading not guilty and
assured itself that Corso understood that, by changing his plea

                               5
to guilty, he was giving up those rights. The District Court also
confirmed that Corso was satisfied with the legal representation
he had received, that he had not been threatened or otherwise
coerced into pleading guilty, and that he understood the charges
against him, the maximum penalties that could be imposed, and
that the District Court was “not obligated to sentence [him]
within the guideline range” because the Sentencing Guidelines
“are not mandatory on [the court].”

        At the District Court’s request, the prosecutor “outlined”
the substance of the plea agreement. But the prosecutor made
only one brief allusion to the agreement’s appellate-waiver
provision, mentioning that the agreement contained “the
standard language regarding waiver of appeal in that it sets forth
the only exceptions to it.” The District Court declined to expand
on the prosecutor’s synopsis, and at no point in the colloquy did
it explain to Corso the implications of the appellate-waiver
provision or inquire if he understood that he was waiving his
right to appeal.

        Following the colloquy, Corso pleaded guilty to one
count of mail fraud. The District Court accepted Corso’s guilty
plea, finding that Corso was competent and capable of entering
an informed plea and that he was knowingly and voluntarily
pleading guilty.

                                3.

      After the District Court accepted Corso’s guilty plea, the
United States Probation Office prepared a presentence report
(PSR) using the November 2006 Sentencing Guidelines.

                                6
Beginning with a base offense level of 6 under Guidelines
§ 2B1.1, the Probation Office recommended a four-level
enhancement under § 2B1.1(b)(2)(B) for an offense involving
between 50 and 250 victims, a two-level enhancement under
§ 3B1.3 for abuse of a position of trust, and a two-level
reduction under § 3E1.1 for acceptance of responsibility. The
resulting total offense level of 10, combined with Corso’s
criminal history category of V, yielded an advisory Guidelines
range of twenty-one to twenty-seven months of imprisonment.

        On September 7, 2007, the District Court held a
sentencing hearing, at which Corso objected to both of the
PSR’s recommended sentencing enhancements. Corso objected
to the number-of-victims enhancement on the grounds that his
offense did not involve fifty or more victims (because the
stipulated total loss was $300) and that the Probation Office
erroneously relied on the “special rule” described in Application
Note 4(C)(ii)(I) to § 2B1.1 to justify presuming the contrary.1
The special rule was inapplicable, Corso argued, because the
delivery truck involved in his offense belonged to T. Wilson
Trucking, not the United States Postal Service, and thus was not
a “Postal Service delivery vehicle” within the meaning of the
application note.      Corso objected to the abuse-of-trust


       1
        Application Note 4(C)(ii)(I) provides in relevant part:
“Special Rule.—A case [involving the theft or attempted theft
of United States mail from] a United States Postal Service relay
box, collection box, delivery vehicle, satchel, or cart, shall be
considered to have involved at least 50 victims.” U.S.S.G.
§ 2B1.1 cmt. n.4(C)(ii)(I).

                               7
enhancement on a similar ground, arguing that he was an
employee of a private trucking company, not of the Postal
Service, and, as such, was not in a position of trust as
contemplated by § 3B1.3.

       The District Court rejected Corso’s arguments and, again
emphasizing that it understood that the Guidelines were advisory
in nature, accepted the PSR’s recommendations, including the
proposed enhancements and Guidelines range. After reviewing
the sentencing factors set forth in 18 U.S.C. § 3553(a) and
hearing the parties’ arguments, the District Court sentenced
Corso to twenty-one months of imprisonment and two years of
supervised release. It explained that Corso’s “personal
circumstances” were “simply not different enough to warrant a
sentence different from that recommended by the guidelines”
and that, “[i]n the Court’s view, the sentence will adequately
address the sentenc[ing] goals of punishment, rehabilitation and
deterrence.” It then told Corso the following:

       “Sir, you have a right to appeal this sentence. If
       you want to appeal this sentence, you must do so
       within ten days. If you cannot afford the costs of
       appeal, you may apply for leave to appeal in
       forma pauperis. If you cannot afford an attorney,
       I’ll appoint one to represent you free of charge.
       Do you understand what your appeal rights are?”

Corso responded in the affirmative, and the government did not
object to, or otherwise attempt to correct, the District Court’s
statement.


                               8
       Corso filed a timely notice of appeal, challenging his
sentence. On appeal, Corso argues that the District Court
committed procedural error by (1) erroneously applying the
number-of-victims and abuse-of-trust enhancements in
calculating his Guidelines range, (2) treating the Guidelines as
mandatory, and (3) failing to adequately consider the § 3553(a)
sentencing factors. He also contends that his sentence is
substantively unreasonable in light of the § 3553(a) factors.

       The government argues that Corso’s appeal is barred by
the appellate-waiver provision contained in his plea agreement.
Corso responds that the waiver is inapplicable to this appeal
because his grounds for appeal fall within one of the waiver’s
exceptions. He also maintains that he did not knowingly and
voluntarily agree to the waiver because the District Court failed
during the colloquy at the change-of-plea hearing to adequately
inform him of the waiver’s terms and to ensure his
understanding of those terms, as required by Federal Rule of
Criminal Procedure 11(b)(1)(N).

                               II.

       The District Court had subject matter jurisdiction under
18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). See United States v. Gwinnett, 483
F.3d 200, 203 (3d Cir. 2007). Where, as here, the government
invokes an appellate-waiver provision contained in a
defendant’s plea agreement, we must determine as a threshold
matter whether the appellate waiver prevents us from exercising
our jurisdiction to review the merits of the defendant’s appeal.
See United States v. Goodson, 544 F.3d 529, 533-37 (3d Cir.

                               9
2008) (holding that an appellate waiver “has no bearing on an
appeal if the government does not invoke its terms”); Gwinnett,
483 F.3d at 203 (“[T]his court retains subject matter jurisdiction
over the appeal by a defendant who had signed an appellate
waiver.”).

       Generally, our review of the validity and scope of
appellate waivers is plenary. United States v. Jackson, 523 F.3d
234, 237 (3d Cir. 2008); see also Goodson, 544 F.3d at 537 n.6.
But when a defendant seeks to set aside his appellate waiver
based on an unpreserved claim that the district court did not
conduct an adequate colloquy under Federal Rule of Criminal
Procedure 11(b)(1)(N), we review the alleged Rule 11 violation
for plain error. Goodson, 544 F.3d at 539 & n.9 (interpreting
United States v. Vonn, 535 U.S. 55 (2002)).

                               III.

                               A.

       We will decline to exercise our jurisdiction to review the
merits of Corso’s appeal if we conclude (1) that the issues he
pursues on appeal fall within the scope of his appellate waiver
and (2) that he knowingly and voluntarily agreed to the appellate
waiver, unless (3) enforcing the waiver would work a
miscarriage of justice. Goodson, 544 F.3d at 536; Gwinnett, 483
F.3d at 203.




                               10
                               B.

        In determining the scope of a plea agreement’s appellate-
waiver provision, we are guided by the “well-established
principle that ‘plea agreements, although arising in the criminal
context, are analyzed under contract law standards.’” Goodson,
544 F.3d at 535 n.3 (quoting United States v. Williams, 510 F.3d
416, 422 (3d Cir. 2007)). We have explained that, in light of
those standards, “the language of [an appellate] waiver, like the
language of a contract, matters greatly” to our analysis,
Goodson, 544 F.3d at 535, and that such waivers must be
“strictly construed.” United States v. Khattak, 273 F.3d 557,
562 (3d Cir. 2001); cf. Williams, 510 F.3d at 422 (“In view of
the government’s tremendous bargaining power courts will
strictly construe the text [of a plea agreement] against the
government when it has drafted the agreement.”). But we are
also mindful that “[u]nder contract principles, a plea agreement
necessarily ‘works both ways. Not only must the government
comply with its terms and conditions, but so must the
defendant.’” Williams, 510 F.3d at 422 (quoting United States
v. Carrara, 49 F.3d 105, 107 (3d Cir. 1995)). Thus, we will not
permit a defendant to “‘get the benefits of his plea bargain,
while evading the costs [because] contract law would not
support such a result.’” Id. (quoting United States v. Bernard,
373 F.3d 339, 345 (3d Cir. 2004)).

        Here, the language of Corso’s appellate waiver is broad
in scope and clear: Corso agreed to waive the right to take a
direct appeal from his conviction or sentence under 28 U.S.C.
§ 1291 or 18 U.S.C. § 3742 unless (1) the government appealed
from the sentence, (2) the sentence exceeded the applicable

                               11
statutory limits set forth in the United States Code, or (3) the
sentence unreasonably exceeded the Guidelines range
determined by the District Court under the Sentencing
Guidelines. Corso does not claim that either of the first two
exceptions applies, conceding, as he must, that the government
has not appealed his sentence and that the twenty-one months of
imprisonment he received does not exceed the statutory
maximum of five years. Nor does he dispute that his sentence
is within – indeed, at the bottom of – the Guidelines range of
twenty-one to twenty-seven months determined by the District
Court.

        Instead, Corso asserts that the appellate waiver’s third
exception contains an implicit “presumption” that the District
Court would “correctly” apply the Guidelines in calculating his
Guidelines range, and argues that we may consider his appeal
because his twenty-one-month sentence unreasonably exceeds
“the correct sentencing range of 4-10 months,” i.e., the
Guidelines range that results if the number-of-victims and
abuse-of-trust enhancements are excluded from the District
Court’s calculations.       Corso accurately notes that our
“reasonableness review relies on a district court’s reasoning
from the starting point of the correctly calculated Guidelines.”
United States v. Langford, 516 F.3d 205, 213 (3d Cir. 2008).
But Corso’s argument assumes the result he seeks, and we will
not review the District Court’s application of the sentencing
enhancements, or otherwise review his sentence for
reasonableness, if he validly waived his right to that review. Cf.
Khattak, 273 F.3d at 562 (“‘A waiver of the right to appeal
includes a waiver of the right to appeal difficult or debatable
legal issues – indeed, it includes a waiver of the right to appeal

                               12
blatant error.’” (quoting United States v. Howle, 166 F.3d 1166,
1169 (11th Cir. 1999))).

        Corso looks for support to the First Circuit’s decision in
United States v. McCoy, which he cites for the proposition that
“a waiver forgoing ‘any appeal . . . if the sentence imposed
herein is within the guidelines’ does not waive the right to
appeal an alleged misapplication of the guidelines.” 508 F.3d
74, 78 (1st Cir. 2007) (alteration in original) (quoting United
States v. Bowden, 975 F.2d 1080, 1081 n.1 (4th Cir. 1992)). But
McCoy is inapposite. The narrow appellate-waiver provision at
issue in McCoy only barred certain enumerated categories of
appeal, including challenges to “any sentence that falls within
the guideline range.” Id. at 77-78. Because the defendant’s
challenge to the district court’s application of the Guidelines did
not fall within that (or any other) enumerated category, it was
necessarily permitted. Id. at 78. Corso’s appellate waiver, in
contrast, is broad, and an appeal that does not fall within one of
its three narrow exceptions is necessarily waived.

       Moreover, Corso ignores the plain text of his waiver’s
third exception which, unlike the language at issue in McCoy,
permits appeal only if “the sentence unreasonably exceeds the
guideline range determined by the Court under the Sentencing
Guidelines.” (Emphasis added). That language explicitly
lodges broad discretion in the District Court to determine the
applicable Guidelines range; it certainly does not permit an
appeal challenging the District Court’s application of the
Guidelines. We conclude, therefore, that Corso’s appeal falls
within the scope of his appellate waiver.


                                13
                                 C.

                                 1.

        We must next consider Corso’s argument that his waiver
was not knowing and voluntary because the District Court
violated Federal Rule of Criminal Procedure 11(b)(1)(N), which
requires a court, before accepting a guilty plea, to “address the
defendant personally in open court. During this address, the
court must inform the defendant of, and determine that the
defendant understands . . . the terms of any plea-agreement
provision waiving the right to appeal or to collaterally attack the
sentence.” Corso contends that the District Court failed during
its colloquy with him at the change-of-plea hearing both to
adequately inform him of the terms of his appellate waiver and
to ensure that he understood those terms.

        Because Corso did not object before the District Court to
its purported Rule 11 error, he “has the burden to satisfy the
plain-error rule,” Vonn, 535 U.S. at 59, and must show (1) that
there was an error, i.e., a deviation from a legal rule, (2) that the
error was “plain,” i.e., clear or obvious, and (3) that the error
affected his substantial rights. See Johnson v. United States,
520 U.S. 461, 467 (1997); United States v. Olano, 507 U.S. 725,
732-34 (1993); see also Goodson, 544 F.3d at 539. But “relief
on plain-error review is in the discretion of the reviewing court,”
and even if all three conditions are met we will exercise our
discretion to correct the unpreserved error only if Corso
persuades us that (4) “a miscarriage of justice would otherwise
result,” that is, if “the error seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” Olano,

                                 14
507 U.S. at 736; see Vonn, 535 U.S. at 63; Johnson, 520 U.S. at
467. We may consult the entire record, and not simply the
record of the plea colloquy, when considering the effect of the
Rule 11 error. Vonn, 535 U.S. at 59; see also Goodson, 544
F.3d at 540.

                                2.

         Corso has unquestionably met his burden under the first
two prongs of the plain-error analysis. Our review of the record
indicates that the District Court did not personally discuss the
appellate waiver with Corso, or even mention the waiver at any
point, depending instead on the prosecutor to “outline” the plea
agreement during the change-of-plea hearing. But nothing in
the plain language of Rule 11(b)(1) permits a district court to
delegate its responsibilities to “inform” and “determine” to the
government; the Rule provides that “the court must” do both of
those things. And even presuming that the District Court was
permitted to rely on the government in this manner, the
prosecutor’s cursory aside that Corso’s plea agreement “contains
the standard language regarding waiver of appeal in that it sets
forth the only exceptions to it” was plainly insufficient, adding
little to the District Court’s complete silence on the subject.
These failures were clearly error. Cf. Goodson, 544 F.3d at 540
(finding that the district court erred both when it “relied upon
the prosecutor’s recitation of the terms of the appellate waiver
to fulfill its obligation to inform the defendant of the specifics
of the waiver provision” and when it failed to verify that the
defendant understood the waiver).



                               15
                                3.

        We then turn to the third prong of the plain-error
analysis, which requires Corso to show that his substantial rights
were affected by these errors. The Supreme Court has held that,
in order to demonstrate that substantial rights were affected, “a
defendant who seeks reversal of his conviction after a guilty
plea, on the ground that the district court committed plain error
under Rule 11, must show a reasonable probability that, but for
the error, he would not have entered the plea.” United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004); see United States
v. Hall, 515 F.3d 186, 194 (3d Cir. 2008). But where, as here,
the defendant does not seek the reversal of his conviction (i.e.,
does not seek to withdraw his guilty plea) but only challenges
the validity of his appellate waiver so that he may appeal from
his sentence, he is obliged to show a reasonable probability that
the Rule 11 error “precluded him from understanding that he
had a right to appeal and that he had substantially agreed to give
up that right.” Goodson, 544 F.3d at 541; see also United States
v. Sura, 511 F.3d 654, 662 (7th Cir. 2007) (“If the safeguard
required by Rule 11 is missing, the record must reveal an
adequate substitute for it, and the defendant must show why the
omission made a difference to him.”); United States v. Murdock,
398 F.3d 491, 497 (6th Cir. 2005) (holding that “a defendant can
prove that his substantial rights are affected when he shows that
the district court failed to comply with the key safeguard in
place to protect those rights and that there was no functional
substitute for that safeguard”); but cf. United States v. Borrero-
Acevedo, 533 F.3d 11, 18 (1st Cir. 2008) (holding that a
defendant “must show that the waiver of appellate rights was
deficient and that he would otherwise not have pled guilty” in

                               16
order to meet the burden to show that substantial rights are
affected). “The reasonable-probability standard is not the same
as, and should not be confused with, a requirement that a
defendant prove by a preponderance of the evidence that but for
error things would have been different.” Dominguez Benitez,
542 U.S. at 83 n.9.

        In Goodson, we addressed some of the considerations
that inform our inquiry into whether an inadequate Rule 11
colloquy affected a defendant’s substantial rights. In that case,
the evidence in the record demonstrated that the defendant was
“college educated,” had “successfully perpetrated wire fraud and
the uttering of counterfeit checks,” and “was able to read the
plea letter and to comprehend the meaning of its provisions.”
544 F.3d at 540-41. Importantly, the record also demonstrated
that “the prosecutor generally discussed the terms of the
appellate waiver” during the change-of-plea hearing and that the
defendant “advised the Court that he understood that his right to
appeal was substantially limited.” Id. at 541. We also noted
that the defendant “had executed the acknowledgment on the
final page of his plea agreement, indicating that he had read the
agreement, which included the appeal waiver, and discussed it
with his counsel.” Id. Under those circumstances, we
concluded that the defendant had failed to meet his burden under
the third prong of the plain-error analysis. Id.

       In this case, the record demonstrates that Corso, like the
defendant in Goodson, signed his plea agreement, confirming
that he had read the agreement and discussed it with his
attorney. But “[t]he point of Rule 11(b)(1)(N) is that a signed
piece of paper is not enough,” Sura, 511 F.3d at 662, and the

                               17
District Court made no effort to determine that Corso, whose
education is limited to a GED diploma, understood the effect of
his waiver on his right to appeal, or even whether he had
discussed the waiver with his attorney.2 And the prosecutor’s
fleeting reference to “the standard language regarding waiver of


       2
        As Corso indicates in his brief, the District Court later
compounded these clear errors when it unequivocally told Corso
at the end of the sentencing hearing that he had a “right to
appeal” his sentence. We acknowledge that the District Court
may have felt obligated to make those statements due to Federal
Rule of Criminal Procedure 32(j)(1)(B), which requires a court,
“regardless of the defendant’s plea,” to advise the defendant
after sentencing of “any” right to appeal the sentence. But we
believe that the District Court should have qualified its post-
sentencing remarks, ideally by explaining to Corso that his
appellate waiver, if valid, curtailed his ability to appeal issues
within its scope. At the very least, the District Court should
have acknowledged the existence of the appellate waiver and its
narrow exceptions. Cf. United States v. Tang, 214 F.3d 365, 370
(2d Cir. 2000) (explaining that sentencing judges “should not
give unqualified advice concerning a right to appeal” in cases
involving an appellate waiver). Nonetheless, such post-
sentencing remarks do not per se “render ineffective an
otherwise enforceable waiver of appellate rights. . . . [A] waiver
does not lose its effectiveness because the district judge gives
the defendant post-sentence advice inconsistent with the waiver
[because] no justifiable reliance has been placed by the
defendant on such advice.” United States v. Liriano-Blanco,
510 F.3d 168, 173 (2d Cir. 2007).

                               18
appeal,” without further exposition, can hardly be deemed a
“discussion” of the terms of Corso’s appellate waiver, much less
an adequate substitute for the missing safeguards of Rule
11(b)(1)(N). Cf. Goodson, 544 F.3d at 541; United States v.
Robinson, 455 F.3d 602, 610 (6th Cir. 2006) (concluding that
“substitutes for Rule 11 compliance” were present where the
prosecutor thoroughly explained the appellate-waiver provision
at the court’s request and the court independently ascertained
that the defendant understood the provision and had discussed
“all of the provisions” in the plea agreement with his attorney).
“In determining whether a waiver of appeal is ‘knowing and
voluntary,’ the role of the sentencing judge is critical.” Khattak,
273 F.3d at 563; cf. United States v. Schweitzer, 454 F.3d 197,
205 (3d Cir. 2006) (“There is simply no substitute for on-the-
record discussion and deliberation.”). Informed by the entire
record, we are satisfied that Corso has carried his burden to
show that the District Court’s near-total deviation from the
mandates of Rule 11(b)(1)(N) affected his substantial rights.

                                4.

       But a clear error affecting substantial rights cannot,
“without more,” satisfy the fourth prong of the plain-error
analysis, Olano, 507 U.S. at 737, and the Supreme Court has
instructed that we are authorized “to correct only particularly
egregious errors” on plain-error review. United States v. Young,
470 U.S. 1, 15 (1985). We do not believe that Corso has
established that the District Court’s deficient colloquy seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.


                                19
        Corso also argues that we should exercise our remedial
discretion to set aside his appellate waiver because the District
Court’s application of the number-of-victims and abuse-of-trust
enhancements in calculating his Guidelines range constitutes a
“miscarriage of justice.” But Corso’s focus on alleged
procedural errors in the determination of his sentence is
misplaced, and demonstrates “‘the logical failing of focusing on
the result of the proceeding, rather than on the right
relinquished, in analyzing whether an appeal waiver is valid.’”
United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007)
(quoting United States v. Hahn, 359 F.3d 1315, 1326 n.12 (10th
Cir. 2004)). Procedural errors of this nature cannot justify
setting aside an appellate waiver because “allow[ing] alleged
errors in computing a defendant’s sentence to render a waiver
unlawful would nullify the waiver based on the very sort of
claim it was intended to waive.” Id. Although the right to
appeal is one “of critical importance to a criminal defendant,”
Murdock, 398 F.3d at 498, we are unconvinced, on the record
here, that enforcing the appellate waiver in Corso’s plea
agreement would result in a miscarriage of justice. See Olano,
507 U.S. at 736; Johnson, 520 U.S. at 470; cf. United States v.
Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004) (holding
that enforcement of appellate waiver “would seriously affect the
fairness, integrity and public reputation of our plea proceedings”
where there was a “‘wholesale failure’ to comply with Rule 11
or otherwise ensure that [the defendant] understood the
consequences of waiving his right to appeal the sentence which




                               20
had yet to be imposed”).3 Accordingly, we will enforce Corso’s
appellate waiver and do not reach the merits of this appeal.

                               IV.

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




       3
        We note that it is an open question whether, or the extent
to which, our analysis under the fourth prong of the plain-error
rule overlaps our other inquiry, guided by the non-exclusive list
of factors identified in United States v. Khattak, 273 F.3d 557,
563 (3d Cir. 2001), into “whether enforcing [an appellate]
waiver would work a miscarriage of justice.” United States v.
Jackson, 523 F.3d 234, 244 (3d Cir. 2008) (citing Khattak, 273
F.3d at 562 and United States v. Gwinnett, 483 F.3d 200, 203
(3d Cir. 2007)). We need not resolve that question here,
however, because we conclude that enforcing Corso’s appellate
waiver would not result in a miscarriage of justice under either
the plain-error rule or Khattak and its progeny.

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