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


5-22-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3130




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Recommended Citation
"USA v. Folk" (2006). 2006 Decisions. Paper 1074.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1074


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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 04-3130


                         UNITED STATES OF AMERICA

                                         v.

                                 BEATRICE FOLK,
                                             Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             D.C. Crim. 00-cr-00471-1
                District Judge: The Honorable Bruce W. Kauffman


                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 11, 2006


              Before: BARRY, SMITH and TASHIMA,* Circuit Judges


                           (Opinion Filed: May 22, 2006)


                                     OPINION




  *
   The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
BARRY, Circuit Judge

       Appellant Beatrice Folk pled guilty to conspiracy to possess methamphetamine

with the intent to distribute and to the possession of methamphetamine with the intent to

distribute. Prior to the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), Folk was sentenced by the United States District Court for the Eastern

District of Pennsylvania to seventy months in prison, the low end of the applicable

Guidelines range.1 She now appeals,2 challenging the legality of the sentence in light of

Booker.3

       Applying the Supreme Court’s decision in Booker, this Court, in United States v.

Davis, 407 F.3d 162 (3d Cir. 2005), ruled that “[a]lthough plain error jurisprudence



   1
    Folk benefitted from application of the “safety valve” provision found in U.S.S.G. §
5C1.2, which permitted the District Court to sentence below the applicable statutory
minimum sentence of 120 months.
   2
     Under Federal Rule of Appellate Procedure 4(b), a criminal defendant has ten days
within which to file a notice of appeal from the later of the entry of the judgment or the
filing of a government appeal. The judgment of sentence and commitment order was
entered by the District Court on June 23, 2004, but Folk did not file her notice of appeal
until July 23, 2004. On July 22, 2004, however, Folk filed an unopposed motion for an
extension of time within which to file her notice of appeal. See Fed. R. App. P. 4(b)(4)
(“Upon a finding of excusable neglect or good cause, the district court may—before or
after the time has expired, with or without motion and notice—extend the time to file a
notice of appeal for a period not to exceed 30 days from the expiration of the time
otherwise prescribed by this Rule 4(b).”). On August 3, 2004, the District Court granted
that motion nunc pro tunc through July 23, 2004. The appeal is, therefore, timely, and
our jurisdiction over it arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
   3
    Folk also argues that the District Court erred in refusing to grant her a downward
departure based upon familial circumstances.

                                             2
generally places the burden on an appellant to demonstrate specific prejudice flowing

from the District Court’s error, in this context – where mandatory sentencing was

governed by an erroneous scheme – prejudice can be presumed.” Id. at 165. The

appellate remedy for such an error is to vacate the sentence and remand for resentencing

under an advisory Guidelines framework. See id.

         As part of her plea agreement, however, Folk “voluntarily and expressly waive[d]

all rights to appeal” her sentence.4 We will enforce the waiver – the validity of which we

review de novo – provided she “entered into [it] knowingly and voluntarily,” and so long

as it does not “work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557,

560 (3d Cir. 2001). If valid, the waiver deprives us of jurisdiction over the appeal. See

id. at 563. The government argues that we must enforce the waiver. We agree.

         Our decision in United States v. Lockett, 406 F.3d 207 (3d Cir. 2005) controls.

There, we held “that where a criminal defendant has voluntarily and knowingly entered

into a plea agreement in which he or she waives the right to appeal, the defendant is not

entitled to resentencing in light of Booker.” Id. at 214. That the Supreme Court would

invalidate the mandatory Guidelines regime was “merely one of the risks that

accompanie[d]” Folk’s guilty plea and waiver of appeal. Id. (“The record reflects that

Lockett knowingly and voluntarily bargained for his plea agreement. He cannot now ask

to re-bargain the waiver of his right to appeal because of changes in the law.”). In short,



   4
       There were two exceptions to the waiver, neither of which is applicable here.

                                              3
the “favorable change in the law,” id., does not call into question the voluntary and

knowing nature of Folk’s waiver of appeal. See Khattak, 273 F.3d at 561 (observing that

“[w]aivers of the legal consequences of unknown future events are commonplace” and

that their “prospective nature” does not “render a defendant’s act unknowing”) (citation

and internal quotation marks omitted).5

       Consequently, we are without jurisdiction and will dismiss the appeal.




   5
     Nor does enforcement of the waiver, and the concomitant preservation of Folk’s
sentence at the low end of the then-mandatory Guidelines range, work “a miscarriage of
justice.” Folk contends the District Court would have imposed a lighter sentence but for
the mandatory Guidelines. The District Court did, in fact, note its “limited discretion” to
depart from the Guidelines and described this as a “very sad case.” Those statements, at
best, would only help Folk “demonstrate specific prejudice flowing from the District
Court’s error,” Davis, 407 F.3d at 165. Pursuant to Davis, however, such prejudice is
presumed, id., and does not on its own, according to Lockett, render a waiver of appeal
unenforceable.

                                             4
