                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 16-3622
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                         MIGUEL A. ESPERANZA-VASQUEZ,
                                                Appellant
                                 ______________

                   Appeal from the District Court of the Virgin Islands
                            (D. V.I. No. 1-15-cr-00017-001)
                      District Judge: Honorable Wilma A. Lewis
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     May 5, 2017
                                  ______________

       Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.

                                   (Filed: June 12, 2017)

                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.

       Miguel Esperanza-Vasquez pleaded guilty to committing wire fraud and now

appeals the District Court’s judgment of conviction. Because Vasquez waived his right

       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
to appeal, he has presented no bases against enforcing the waiver, and there are no non-

frivolous bases to appeal, we will grant his counsel’s motion to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967), and dismiss the appeal.

                                             I

       Vasquez, pretending to be a law enforcement officer, stopped undocumented

immigrant Loftus John while John was driving. Vasquez told John that he could help

him obtain immigration documentation. Vasquez also told John that if he failed to pay

him, John would be deported. John acceded to these demands and kept a ledger detailing

the more than $27,000 he paid to Vasquez. Some of this money was paid by wire.

       Vasquez was charged with various offenses and pleaded guilty to one count of

wire fraud in violation of 18 U.S.C. § 1343 pursuant to a plea agreement that contained

an appellate waiver provision. Under the provision, Vasquez waived his right to appeal

any sentence imposed or the manner in which it was imposed, so long as it did not exceed

the statutory maximum sentence, and waived his right to petition federal courts for a writ

of habeas corpus, except to raise a claim of ineffective assistance of counsel. The parties

also agreed that, for purposes of sentencing, the amount of loss was $14,999 and

Vasquez’s advisory sentencing range under the United States Sentencing Guidelines (the

“Guidelines” or “U.S.S.G.”) would be zero to six months’ imprisonment.

       Following the plea, the Probation Office prepared a Presentence Investigation

Report (“PSR”), which concluded that the amount of loss was actually $27,190, and that

sentencing enhancements applied for (1) falsely representing a police officer, under
                                             2
U.S.S.G. § 2B1.1(b)(9), and (2) for committing an offense against a person Vasquez

knew or should have known was a “vulnerable victim,” under U.S.S.G. § 3A1.1(b). As a

result, the PSR concluded that the Guidelines sentencing range was 18 to 24 months’

imprisonment.

       Both parties objected to the PSR’s loss calculation and sentencing enhancements.

The District Court held an evidentiary hearing to consider these objections, and both John

and Vasquez testified about the facts underlying the conviction. App. 98-170. The

District Court found that: (1) John’s testimony was more credible than Vasquez’s since it

was more detailed and internally consistent, and on this basis concluded that the loss

amount was $27,120; (2) Vasquez falsely represented himself to be a police officer to

commit the crime, and resulting in a two-level increase under § 2B1.1(b)(9); and (3) John

was a “vulnerable victim,” resulting in a two-level enhancement under § 3A1.1(b).

Based on these guideline calculations, the District Court concluded that the applicable

Guidelines range was 18 to 24 months’ imprisonment.

       After hearing arguments for a downward variance from defense counsel and the

Government, the District Court imposed a sentence of 24 months’ imprisonment, three

years of supervised release, and restitution in the amount of $27,120. Vasquez filed a

notice of appeal, and his counsel filed a brief pursuant to Anders, 386 U.S. at 738, stating

that there are no non-frivolous grounds for an appeal and filed a motion to withdraw.




                                             3
                                             II1

                                             A

       “Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme

Court promulgated in Anders to assure that indigent clients receive adequate and fair

representation.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Rule 109.2(a)

allows defense counsel to file both a motion to withdraw and a brief pursuant to Anders

when counsel concludes that “the appeal presents no issue of even arguable merit.” Third

Circuit L.A.R. 109.2(a). When counsel submits an Anders brief, we must determine:

“(1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an

independent review of the record presents any nonfrivolous issues.” Youla, 241 F.3d at

300 (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). To determine

whether counsel has fulfilled the rule’s requirements, we examine the brief to see if it:

(1) shows that counsel has thoroughly examined the record in search of appealable issues,

identifying those that arguably support the appeal even if wholly frivolous, Smith v.

Robbins, 528 U.S. 259, 285 (2000); and (2) explains why the issues are frivolous,

Marvin, 211 F.3d at 780-81. If these requirements are met, we need not scour the record

for issues and the Anders brief guides our review. Youla, 241 F.3d at 301.

       Counsel’s Anders brief satisfies both elements, and an independent review of the

record reveals no non-frivolous issues. First, the brief demonstrates an examination of

       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We exercise plenary review to determine whether there
are any non-frivolous issues for appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988).
                                             4
the record in search of appealable issues. It notes that there is an appellate waiver yet

nonetheless identifies potential issues concerning the reasonableness of the sentence,

focusing on the District Court’s application of a sentencing enhancement based on a loss

calculation greater than that stipulated to in the plea agreement, and a potential

ineffective assistance of counsel claim against trial counsel. Second, the brief explains

why challenges to these issues are frivolous, both because any such appeal is foreclosed

by the appellate waiver included in the plea agreement and because these claims have no

merit. Counsel’s Anders brief is therefore sufficient, and we will proceed to consider

whether the appellate waiver is enforceable.

                                               B

       We will generally decline to entertain an appeal if (1) the issues on appeal “fall

within the scope” of an appellate waiver, and (2) the defendant “knowingly and

voluntarily agreed to the appellate waiver.”2 United States v. Corso, 549 F.3d 921, 927

(3d Cir. 2008); see also United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). We

will, however, invalidate a waiver whose enforcement would cause a “miscarriage of

justice.” Khattak, 273 F.3d at 562.




       2
         The Government frequently seeks to enforce the appellate waiver by filing a
motion for summary action under Third Cir. L.A.R. 27.4. See United States v. Goodson,
544 F.3d 529, 534 n.2 (3d Cir. 2008). Here, the Government sought enforcement in its
response brief. While this certainly preserved the argument, see id. at 534-35, the
summary enforcement process may have avoided unnecessary briefing concerning the
merit, or lack thereof, of an appeal.
                                               5
       To determine the scope of an appellate waiver contained in a plea agreement, we

examine the language of the plea agreement and “strictly construe[]” it. Corso, 549 F.3d

at 927 (citation omitted). The text of the appellate waiver provision in Vasquez’s plea

agreement says that any challenge Vasquez raises to the sentence falls within its scope as

long as the sentence is not greater than the statutory maximum allowable sentence for the

offense of conviction.3 Vasquez was convicted of wire fraud in violation of 18 U.S.C.

§ 1343, which carries a maximum sentence of 20 years’ imprisonment. Thus, any

challenge Vasquez could raise to his 24-month prison sentence would fall within the

scope of the appellate waiver. See Corso, 549 F.3d at 927 (strictly construing a similarly

“broad” appellate waiver in a sentencing appeal). As a result, we agree with counsel that

challenges to the District Court’s fact-finding and the reasonableness of Vasquez’s

sentence fall within the scope of the appellate waiver.

       Additionally, Vasquez knowingly and voluntarily agreed to the appellate waiver.

“In determining whether a waiver of appeal is ‘knowing and voluntary,’ the role of the


       3
           The appellate waiver in Vasquez’s plea agreement states that:

       [T]he defendant knowingly waives the right to appeal any sentence within
       the maximum provided in the statute(s) of conviction or the manner in
       which that sentence was determined, on the grounds set forth in Title 18,
       United States Code, Section 3742(a) or on any ground whatever, in
       exchange for the concessions made by the United States in this plea
       agreement. In addition, the defendant expressly waives the right to petition
       under 28 U.S.C. Section 2255 except his right to claim ineffective
       assistance of counsel.

App. 25.
                                              6
sentencing judge is critical.” Khattak, 273 F.3d at 563. We therefore look to a district

court’s compliance with the requirement that, before accepting a guilty plea containing an

appellate waiver, a district court must address a defendant in open court and determine

that he understands the appellate waiver. Fed. R. Crim. P. 11(b)(1)(N); United States v.

Goodson, 544 F.3d 529, 539-41 (3d Cir. 2008); Corso, 549 F.3d at 928-29. Before

accepting Vasquez’s guilty plea, the District Court examined Vasquez under oath and

asked him several questions to ensure that Vasquez was competent to enter the plea, that

he did so voluntarily, that he read, understood, and reviewed his plea agreement with his

counsel, had no questions about it, and understood the appellate waiver provision.

Vasquez responded affirmatively to all of these inquiries, and the colloquy on these

subjects as well as the entire plea proceeding show that the District Court complied with

Rule 11.4

       Moreover, Vasquez confirmed these oral expressions by having twice affirmed in

writing that he understood and agreed to the terms of the appellate waiver. Immediately

above Vasquez’s signature on the plea agreement, the agreement stated that he “enters

this agreement knowingly, voluntarily, and upon advice of counsel.” App. 26. Vasquez

also signed and filed an Application for Permission to Enter Plea of Guilty, which

reiterated the terms of the appellate waiver. Thus, there is no non-frivolous argument that

Vasquez did not knowingly and voluntarily waive his right to appeal the sentence.

       4
         At sentencing, the District Court again asked questions to ensure that Vasquez
understood that he waived his right to appeal both the sentence and the manner in which
it was imposed.
                                             7
       Finally, enforcing the waiver would not work a miscarriage of justice. Though

Vasquez might have hoped that the District Court would have accepted the factual

assertions and Guidelines calculations in the plea agreement, it was well within the

District Court’s discretion to make fact-findings and Guidelines calculations that

diverged from the stipulations in the plea agreement. United States v. Maurer, 639 F.3d

72, 81 (3d Cir. 2011) (“[A] sentencing court is not bound by factual stipulations in a plea

agreement and has discretion to make factual findings based on other relevant

information.” (citation omitted)). Additionally, Vasquez did not enter the plea agreement

based on any pretense that the sentencing recommendations contained in the plea

agreement were binding on the Court. Indeed, the plea agreement stated that the District

Court was not bound by the factual stipulations or sentencing recommendations

contained in the agreement, and before accepting the plea, the District Court asked

Vasquez to confirm that he understood that the District Court had the discretion to give

him a longer sentence than that recommended in the plea agreement. Furthermore,

because the District Court’s fact-finding and legal conclusions are amply supported, no

miscarriage of justice is caused by enforcing the appellate waiver.5 See United States v.


       5
         Even if we did not enforce the appellate waiver, we agree with counsel that any
potential issue Vasquez could raise on appeal would be frivolous. We are satisfied that
Vasquez’s plea was knowing and voluntary, and, given the evidence adduced at the
sentencing hearing, there was an adequate basis to support it.
       Moreover, the sentence imposed was reasonable. Although the District Court
found that the loss to the victim was greater than the amount to which the parties
stipulated, the District Court was not bound by the plea agreement or its Guidelines
calculations. See Maurer, 639 F.3d at 81. In addition, the evidence supports its loss
                                             8
Fountain, 792 F.3d 310, 322 (3d Cir. 2015) (“Sentences that fall within the applicable

Guidelines range are more likely to be reasonable than those that do not.”); Khattak, 273

F.3d at 563 (stating that a miscarriage of justice generally results only where there is

grave error or error that has a significant effect on the defendant).




calculation. In this regard, the Court found that John’s testimony was more credible than
Vasquez’s since it was more detailed and was based on a “meticulous” and
contemporaneous ledger reflecting John’s payments to Vasquez, as opposed to Vasquez’s
unfounded “bald assertion” estimating the loss amount to be between $10,000 and
$11,000. App. 281. Thus, the District Court’s loss calculation of $27,120 was supported
by the evidence, and the Court correctly concluded that this loss amount warranted a
four-level increase to the base offense level. U.S.S.G. § 2B1.1(b)(1)(C) (stating that a
four level increase to the base offense level applies where the loss amount exceeds
$15,000).
        The District Court’s application of two other sentencing enhancements was also
amply supported by law and facts. First, the District Court properly applied United States
v. Iannone, 184 F.3d 214, 220 (3d Cir. 1999), and found that John was a vulnerable
victim under U.S.S.G. § 3A1.1(b)(1) because (1) as an undocumented immigrant, John
was particularly susceptible to Vasquez’s criminal conduct since he had a “strong fear of
deportation and incarceration,” App. 290-91; (2) in perpetrating the fraud, Vasquez knew
of John’s particular vulnerabilities and, as the District Court found, “knew exactly which
buttons to push” to exploit them, App. 296; and (3) it was because of John’s vulnerability
and fear of deportation and incarceration that Vasquez was able to take advantage of him.
Second, the District Court correctly found that Vasquez was able to defraud John because
he pretended to be a police officer and so the “offense involved a misrepresentation that
the defendant was acting on behalf of a . . . government agency,” warranting an upward
adjustment under § 2B1.1(b)(9)(A). Based on these enhancements, the District Court
concluded the applicable range was 18-24 months, and the imposition of a 24-month
sentence was reasonable and not an abuse of discretion. See United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009) (en banc) (stating that we review a District Court’s
sentencing decision for abuse of discretion).
        Finally, with respect to any claim of ineffective assistance of counsel, we note
that, except in rare instances, we will address ineffectiveness claims only on collateral
review, where an evidentiary record can be developed to evaluate such claims. United
States v. Thornton, 327 F.3d 268, 271-72 (3d Cir. 2003). Nothing in the record calls for
us to invoke this exception.
                                              9
       Thus, we agree with counsel that there is no non-frivolous argument against

enforcing the appellate waiver because (1) any issue Vasquez could raise on direct appeal

falls within the scope of the appellate waiver, (2) Vasquez entered into the waiver

knowingly and voluntarily, and (3) no miscarriage of justice would result from enforcing

the wavier. We will therefore enforce the waiver and dismiss the appeal.


                                             IV

       For the foregoing reasons, we will grant counsel’s motion to withdraw and dismiss

the appeal.6




       6
         Vasquez is hereby advised that under the Criminal Justice Act, counsel is not
obligated to file any further applications, including a petition for rehearing in this Court
or a petition for writ of certiorari in the United States Supreme Court. See also
L.A.R. 35.4; 109.2(b). If Vasquez wishes to pursue these avenues, he must either retain
counsel or do so pro se. Vasquez should note that a petition for rehearing en banc must
be filed within 14 days of the entry of judgment; if that time has passed, Vasquez may
promptly file a motion to enlarge the time for such filing. Counsel shall timely send a
copy of this Opinion to Vasquez.

                                             10
