                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-23-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3050




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 04-3050


                           UNITED STATES OF AMERICA

                                            v.

                               CLEVELAND MORRIS,
                           a/k/a SHYEM KHALIL MORRIS

                                     Cleveland Morris,

                                            Appellant


           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                            District Court No. 03-cr-00711
                District Court Judge: The Honorable R. Barclay Surrick


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 13, 2005

             Before: ALITO, FUENTES, and CHERTOFF, * Circuit Judges


                          (Opinion Filed: September 23, 2005)




      *
      Judge Chertoff resigned prior to the vacatur of this panel’s earlier decision. On
remand, this case was decided by a quorum of the original panel. See 28 U.S.C. § 46(d).
                               OPINION OF THE COURT


PER CURIAM:

       This case returns to us on remand from the Supreme Court of the United States,

which vacated this Court’s decision dismissing Cleveland Morris’s appeal from his

sentence in a criminal case. See Morris v. United States, 125 S. Ct. 1959 (2005). The

Supreme Court instructed us to reconsider our decision in light of United States v.

Booker, 125 S. Ct. 738 (2005). Having carefully reconsidered it, we conclude that our

earlier order was correct, and we again dismiss Morris’s appeal for lack of jurisdiction.

       Our decision is constrained by United States v. Lockett, 406 F.3d 207 (3d Cir.

2005). The Court there 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. The Court

explained that the knowingness and voluntariness of a plea are not vitiated just because

the defendant could not foresee that the Supreme Court would later grant him a right to

challenge the mandatory application of the Guidelines to his case. See id. at 213-14.

Since the terms of Morris’s guilty plea mirror those in Lockett, see id. at 212-13, Morris

has similarly waived his right to challenge his sentence.

       Morris argues that his appeal may proceed under an exception set forth in the plea

agreement for sentences that “exceed the statutory maximum,” but the sentence he


                                             2
received did not trigger that exception. At his plea colloquy, Morris clearly admitted to

having been “a convicted felon in possession of a firearm.” Tr. at 8; see also id. at 17-18.

This crime, a violation of 18 U.S.C. § 922(g)(1), carries a maximum sentence of ten years

of imprisonment. See id. § 924(a)(2). Morris acknowledged at the plea colloquy that this

was the maximum sentence he faced. Tr. at 9. The sentence he actually received, 90

months, thus fell well shy of the maximum he could have received based on the facts he

admitted at the colloquy. Because his sentence does not come within one of the

exceptions set forth in the plea agreement, Morris’s appeal is foreclosed and must be

dismissed.
