                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                     ______

                                        No. 16-1057
                                       ____________

                            UNITED STATES OF AMERICA

                                             v.

                                   KAREEM SAMPSON,
                                a/k/a RYHEEM SAMPSON

                                                  Kareem Sampson,
                                                             Appellant

                                       ____________

                 On Appeal from the United States District Court for the
                           Eastern District of Pennsylvania
                            (D.C. No. 2-11-cr-00394-001)
                        District Judge: Hon. Cynthia M. Rufe

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     April 3, 2017

             Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges.

                                  (Filed: April 10, 2017)
                                      ____________

                                         OPINION
                                       ____________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.

       Defendant Kareem Sampson appeals from the District Court’s judgment of

conviction and sentence. Sampson, however, waived the right to appeal as part of his

guilty plea agreement. Because we find the appellate waiver to be valid and enforceable,

we will dismiss Sampson’s appeal and affirm his conviction and sentence.

                                             I.

       We write solely for the parties and assume their familiarity with the facts of the

case. On July 19, 2011, a grand jury indicted Sampson on one count of possession of a

firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Sampson

pleaded guilty to the crime at a hearing on July 11, 2014. The District Court accepted

Sampson’s plea but deferred acceptance of the underlying plea agreement. On June 29,

2015, Sampson moved to withdraw his guilty plea, arguing that he should have been

allowed to preserve his right to appeal the District Court’s denial of an earlier suppression

motion. The District Court denied Sampson’s motion to withdraw.

       Because Sampson had four prior convictions for possession with intent to deliver

either cocaine or crack cocaine, his probation officer concluded in the presentence report

that Sampson was an armed career criminal as defined by 18 U.S.C. § 924(e) (the

“Armed Career Criminal Act” or the “ACCA”). At sentencing, Sampson objected neither

to the portions of the presentence report describing his prior convictions nor the

conclusion that he was an armed career criminal. He also acknowledged that he was


                                             2
agreeing to be sentenced accordingly. On January 6, 2016, the District Court accepted

the plea agreement and, pursuant to it, sentenced Sampson to fifteen years of

imprisonment and a five-year term of supervised release, among other monetary

penalties. Sampson filed a timely appeal.

                                            II.1

       Sampson argues on appeal that the statutes under which he was previously

convicted were never identified at sentencing and, therefore, the record lacked sufficient

evidence to sustain his designation as an armed career criminal. Before reaching the

merits of Sampson’s appeal, we must address the Government’s contention that Sampson

waived the right to appeal his sentence.

       “[W]e will decline to exercise our jurisdiction to review the merits of an appeal

where the defendant knowingly and voluntarily waived the right to appeal.” United

States v. Jackson, 523 F.3d 234, 242 (3d Cir. 2008) (citing United States v. Gwinnett, 483

F.3d 200, 203 (3d Cir. 2007)). Upon the Government’s invocation of a waiver, we ask

three questions to determine its enforceability: “(1) whether the [defendant’s] waiver of

the right to appeal [his] sentence was knowing and voluntary; (2) . . . what is the scope of

the waiver and does it bar appellate review of the issue pressed by the defendant; and (3)




       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary
review over the question of the enforceability and applicability of an appellate waiver.
See United States v. Goodson, 544 F.3d 529, 537 n.6 (3d Cir. 2008); United States v.
Mabry, 536 F.3d 231, 236 (3d Cir. 2008).
                                             3
whether enforcing the waiver would work a miscarriage of justice.” United States v.

Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (quotation marks and citation omitted).

       Sampson’s waiver was knowing and voluntary. We can so conclude by inspecting

the terms of the plea agreement and the words spoken at a plea colloquy. See Gwinnett,

483 F.3d at 203-04; United States v. Mabry, 536 F.3d 231, 238 (3d Cir. 2008) (“[W]e

will examine the written plea agreement and the change-of-plea colloquy on their

faces.”). The record must demonstrate that “the district court inform[ed] the defendant

of, and determine[d] that the defendant underst[ood] . . . the terms of any plea-agreement

provision waiving the right to appeal.” Mabry, 563 F.3d at 238-39 (alterations in

original) (quotation marks omitted) (citing Fed. R. Crim. P. 11(b)(1)(N)).

       Sampson’s plea agreement provides in clear terms that he waived his “rights to

appeal or collaterally attack [his] conviction [or] sentence,” subject to limited enumerated

exceptions. App. 111-12. At the plea hearing, Sampson acknowledged that he read and

understood the plea agreement and, specifically, the provision waiving his appeal rights.

He also stated that he understood that he was stipulating to being an armed career

criminal under 18 U.S.C. § 924(e) and that he did not contest his prior convictions.

Moreover, he agreed that he was pleading guilty to an offense carrying a mandatory

sentence of at least fifteen years of imprisonment. In short, Sampson’s exchange with the

Court “amply demonstrates that the District Court took care to apprise [him] of the

consequences of the waiver and ensure that he understood the terms of the plea

agreement and entered into it willingly.” Mabry, 563 F.3d at 239. The terms of the plea



                                             4
agreement and the colloquy satisfy us that the waiver was made knowingly and

voluntarily.2

       We also determine that the waiver encompasses Sampson’s appeal. Sampson

contends otherwise, citing a provision in the plea agreement excepting from the waiver a

challenge to a sentence that exceeds the statutory maximum. Appendix (“App.”) 112.

According to Sampson, it was not established at the hearing or otherwise that he qualified

for designation as an armed career criminal, 18 U.S.C. § 924(e)(1), and therefore his

fifteen-year sentence exceeded the ten-year statutory maximum for violation, by itself, of

being a felon in possession of a gun, id. § 922(g)(1); id. § 924(a)(2). We disagree for two

reasons.

       First, the plain text of the plea agreement belies Sampson’s argument that the

exception applies. Sampson reserved the right to appeal a sentence that, inter alia,

exceeds the statutory maximum “as set forth” in paragraph 8 of the agreement’s terms.


       2
         Sampson argues separately that his guilty plea itself was not knowing and
intelligent, as is required for it to be valid, because he was not apprised of the specific
state laws the violations of which formed the basis of his designation as an armed career
criminal. He asserts this for the first time on appeal, and therefore must demonstrate
plain error. See United States v. Russell, 564 F.3d 200, 203 (3d Cir. 2009).
        Sampson provides no support for his contention that the District Court was
required to advise him of the requirements for being an armed career criminal under
§ 924(e) — a sentencing enhancement provision, as opposed to a substantive criminal
offense. See, e.g., United States v. Gibbs, 656 F.3d 180, 182 (3d Cir. 2011). Therefore,
we find no error on the part of the Court, which went to lengths to ensure that Sampson
understood that he was agreeing to the application of the ACCA and that he consequently
faced a fifteen-year minimum sentence. See Jamison v. Klem, 544 F.3d 266, 277 (3d Cir.
2008) (stating that at a plea colloquy the defendant must be told about the possible direct
consequences of his plea, including the mandatory minimum sentence he faces). The
record demonstrates that Sampson’s plea was knowing and voluntary, and his argument
otherwise is without merit.
                                             5
App. 112; see also App. 69 (the Government summarizing at the plea hearing that

Sampson may on appeal “raise only a claim that the sentence imposed exceeds the

statutory maximum for that count as set forth in the agreement” (emphasis added)). The

statutory maximum set forth in paragraph 8, which outlines Sampson’s agreement that he

has three qualifying ACCA convictions, is life imprisonment. App. 110. On its face, the

exception does not cover Sampson’s present challenge concerning the evidentiary support

for the sentencing enhancement which he agreed applied to him.3 Cf. United States v.

Corso, 549 F.3d 921, 927 (3d Cir. 2008) (explaining that plea agreements are “analyzed

under contract law standards” and therefore “the language of an appellate waiver, like the

language of a contract, matters greatly to our analysis” and must be “strictly construed”

(quotation marks, citations, and alteration omitted)).

       Second, there was sufficient evidence to establish that Sampson’s prior

convictions were qualifying predicate offenses. The relevant portion of the ACCA

imposes a fifteen-year minimum sentence on anyone who “violates [18 U.S.C. §] 922(g)

. . . and has three previous convictions by any court . . . for violent felony or serious drug

offense, or both.” 18 U.S.C. § 924(e)(1). A serious drug offense is defined as one “for

which a maximum term of imprisonment of ten years or more is prescribed by law.” Id.

§ 924(e)(2)(A)(ii). In determining that a defendant qualifies as an armed career criminal,

“a court may . . . confirm [his] previous convictions by relying on the terms of the plea


       3
        Moreover, to allow Sampson to argue that an exception in his agreement applied
to terms to which he stipulated as part of that agreement “would be inequitable because it
would allow [Sampson] to get the benefits of [his] plea bargain, while evading the costs.”
United States v. Bernard, 373 F.3d 339, 345 (3d Cir. 2004).
                                              6
agreement, the charging document, the transcript of colloquy between judge and

defendant, or other comparable judicial records of sufficient reliability.” United States v.

Howard, 599 F.3d 269, 272 (3d Cir. 2010) (citing Shepard v. United States, 544 U.S. 13,

16 (2005)).

           The presentence report identifies the dates and case numbers of four prior state

convictions and notes that the convictions were for possessing with intent to deliver

cocaine. Absent objections to its findings, a court may consider the report as evidence

when determining whether a defendant qualifies as an armed career criminal. United

States v. Doe, 810 F.3d 132, 147 (3d Cir. 2015). The presentence report shows, and

Sampson admits, that he has been at least thrice convicted in Pennsylvania for possessing

cocaine. For each conviction, Sampson must have violated 35 Pa. Cons. Stat. § 780-

113(a)(30), and been subject to a possible ten-year term of imprisonment pursuant to 35

Pa. Cons. Stat. § 780-113(f)(1.1).4 Therefore, there is sufficient evidence demonstrating

that Sampson is subject to the ACCA and that his sentence is well below the statutory

maximum. No exception to his wavier applies.

       Finally, enforcing the waiver does not “work a miscarriage of justice.” United

States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). A number of factors guide this

consideration. See id. (endorsing United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir.

       4
         We have held that a conviction under Pennsylvania law “for possession with
intent to distribute cocaine is a ‘serious drug offense’ and properly serve[s] as a predicate
offense for the imposition of the fifteen-year minimum sentence under the ACCA.”
United States v. Abbott, 748 F.3d 154, 160 (3d Cir. 2014) (quoting 18 U.S.C. § 924(e));
see also United States v. Henderson, 841 F.3d 623, 629 n.5 (3d Cir. 2016) (affirming
Abbott’s continued viability after the Supreme Court’s intervening decision regarding
ACCA predicate offenses in Mathis v. United States, 136 S. Ct. 2243 (2016)).
                                               7
2001)). Our analysis is “open-ended,” but ultimately we will disregard an otherwise

valid appellate waiver only “sparingly and without undue generosity.” United States v.

Wilson, 429 F.3d 455, 458 (3d Cir. 2005) (citing Teeter, 257 F.3d at 26).

       The circumstances here do not warrant bypassing Sampson’s waiver. Sampson’s

chief argument is that there lacked record support for his being designated an armed

career criminal and consequently that his sentence is unlawfully excessive. In other

words, he contends that his sentence is wrong. But by agreeing to waive his appellate

rights Sampson agreed to forgo his “right to appeal difficult or debatable legal issues”

and even “the right to appeal blatant error.” Khattak, 273 F.3d at 562 (quoting United

States v. Howie, 166 F.3d 1166, 1169 (11th Cir. 1999)); United States v. Jackson, 523

F.3d 234, 244 (3d Cir. 2008) (counseling that claims of an unreasonable sentence portend

a miscarriage of justice only in “rare and unusual situation[s]”). Although we have

intimated that a conviction based on insufficient evidence may warrant invalidating a

waiver, it is only in the case where “the record is entirely devoid of evidence that [the

defendant] committed each element” of the offense. United States v. Castro, 704 F.3d

125, 138 (3d Cir. 2013). Sampson does not dispute that he is guilty of violating §

922(g)(1). And, as discussed above, the argument that there is no evidence supporting

the application of § 924(e) is unavailing. Therefore, the record was not “entirely devoid”

of evidence supporting his plea and sentence.

       Ultimately, even if it were the case that there was insufficient evidence to establish

that Sampson’s prior convictions were for “serious drug offenses” — which we do not

hold — the District Court was entitled to impose the sentence to which Sampson
                                              8
stipulated in his plea agreement. United States v. Bernard, 373 F.3d 339, 343-44 (3d Cir.

2004) (“[A] sentencing court has the authority to accept a plea agreement stipulating to a

sentencing factor or a provision of the sentencing guidelines that otherwise would not

apply, or specifying a sentence that falls outside the applicable guidelines range.”). In his

plea bargain and at his hearing, Sampson agreed that his prior convictions established that

he was an armed career criminal and that he should be sentenced accordingly. He cannot

now argue that the District Court erred in honoring that agreement. Holding Sampson to

his promise not to appeal his sentence works no miscarriage of justice.

                                            III.

       Accordingly, faced with a valid and enforceable appellate waiver, we decline to

address the merits of Sampson’s appeal. The appeal will be dismissed, and we will

affirm the District Court’s judgment of conviction and sentence.




                                             9
