                                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 08-1394
                                _____________

                        UNITED STATES OF AMERICA

                                       v.

                            WILLIAM D. EDGAR,

                                         Appellant
                                _____________

                On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                     District Court No. 2-07-cr-00154-001
                District Judge: The Honorable Gary L. Lancaster


               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                May 10, 2011

         Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges

                             (Filed: June 13, 2011)

                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

      Pursuant to the terms of a written plea agreement, William D. Edgar waived

his right to an indictment and pleaded guilty to a three-count information in the
United States District Court for the Western District of Pennsylvania.           The

information charged Edgar with a conspiracy in violation of 18 U.S.C. § 371, wire

fraud in violation of 18 U.S.C. § 1343, and bank fraud in violation of 18 U.S.C. §

1344. The charges were based on Edgar’s participation in a scheme to defraud

federally insured financial institutions by submitting materially false statements in

mortgage loan applications. The plea agreement contained a broad waiver of

Edgar’s right to appeal his conviction or sentence. In addition, the agreement set

forth stipulations by the parties regarding the calculation of Edgar’s offense level

based on the amount of the loss, his role in the offense, and his acceptance of

responsibility. At sentencing, after noting the applicable stipulations, the District

Court determined that Edgar’s offense level was 21 and that his criminal history

score was I, yielding a sentencing guidelines range of 37 to 46 months. At the

conclusion of the sentencing proceeding, the District Court imposed, inter alia,

concurrent sentences of 37 months of imprisonment on each count.

      Edgar appealed. 1 He contends that the District Court abused its discretion

because it failed to adequately consider the sentencing factors set forth in 18

U.S.C. § 3553(a) and to grant a downward variance. In a second argument Edgar

asserts that the Court abused its discretion in refusing to grant a downward


1
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                         2
departure or variance on the basis that the stipulated amount of loss overstated the

actual loss. The government invokes the appellate waiver contained in the plea

agreement and submits that it should be enforced.          In the alternative, the

government asserts that Edgar’s arguments lack merit.

      The issues that Edgar raises on appeal fall within the scope of the appellate

waiver. Because Edgar acknowledges that his appellate waiver was knowing and

voluntary, we consider “whether enforcing the waiver would work a miscarriage of

justice.” United States v. Jackson, 523 F.3d 234, 244 (3d Cir. 2008). Edgar

acknowledges that his sentencing guideline was correctly calculated and that his

sentence is within the guideline range. Nonetheless, he contends that the waiver

should be set aside because the District Court’s failure to give any meaningful

consideration to the § 3553(a) sentencing factors constitutes a miscarriage of

justice. According to Edgar, the Court merely listed the § 3553(a) factors and did

not explain the weight it accorded the evidence Edgar adduced to mitigate his

sentence.

      In United States v. Khattak, 273 F.3d 557 (3d Cir. 2001), we declined to

invalidate appeal waivers based on any particular legal or factual claim, choosing

instead to consider several factors in deciding whether to vacate an otherwise valid

waiver. Id. at 563 (endorsing the approach in United States v. Teeter, 257 F.3d 14,

25-26 (1st Cir. 2001)). Central to this inquiry is whether the District Court erred.

                                         3
We find no error. It is clear from a review of the record before us that the District

Court did more than simply list the factors. It specifically noted the circumstances

Edgar cited in support of a downward variance. It chose, however, after noting,

inter alia, the ongoing nature of the offenses, the elaborate scheme used to defraud

the mortgage brokers, the significant loss Edgar caused to several institutions, and

the seriousness of the offenses, to impose a sentence at the bottom of the

sentencing guidelines. Accordingly, we conclude that there is no basis for setting

aside the valid appellate waiver and we will affirm the judgment of the District

Court.2




2
   Inasmuch as we have concluded that the appellate waiver is valid and effective, we do
not reach Edgar’s arguments on the merits. For that reason, we deny as moot defense
counsel’s motion to file a supplemental reply brief citing new authority to address one of
Edgar’s substantive arguments. We also deny Edgar’s pro se motions to proceed pro se
and to amend the appellate brief in order to raise the same authority.
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