                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4148
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                             PAUL WALLACE SANDERS,
                                                Appellant
                                  _____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                       (D.C. Criminal No. 2-06-cr-00394-001)
                      District Judge: Hon. Terrence F. McVerry
                                   _____________

                          Submitted Under Third Circuit LAR 34.1(a)
                                   October 26, 2011

               Before: FISHER, VANASKIE, and ROTH Circuit Judges

                               (Filed: November 28, 2011)

                                     _____________

                                       OPINION
                                     _____________

VANASKIE, Circuit Judge.

      Paul Wallace Sanders appeals his 188-month sentence following a guilty plea to

one count of distribution of five or more grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1). We will enforce Sanders’s waiver of his appellate rights and affirm the

District Court’s judgment. 1

       Because we write primarily for the parties, we assume familiarity with the case

and discuss only those facts necessary to our decision. On July 13, 2007, Sanders

pleaded guilty to one count charging him with distributing more than five grams of

cocaine base in violation of 21 U.S.C. § 841(a)(1). The District Court determined that

Sanders was a career offender with a criminal history category of VI and an adjusted total

offense level of 31, resulting in an advisory guideline range of 188 to 235 months’

imprisonment. On November 9, 2007, the District Court sentenced Sanders to 188

months’ imprisonment and five years’ supervised release. Although Sanders timely filed

his notice of appeal on November 18, 2007, it was not received by this Court until

October 2010.

       Sanders argues that his 188-month sentence must be vacated as procedurally and

substantively unreasonable. He claims that the sentence is procedurally unreasonable

because the District Court failed to address his request for a downward variance from the

career offender guideline range based on the 18 U.S.C. § 3553(a) factors. He further

contends that the sentence is substantively unreasonable because it is greater than

necessary to achieve the purposes of sentencing.

       As part of his plea agreement, however, Sanders waived his right to appeal his

conviction or sentence. We enforce appellate waivers that are entered into knowingly


       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             2
and voluntarily, unless enforcement would work a miscarriage of justice. United States v.

Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). Sanders does not claim, nor does the record

suggest, that he did not knowingly and voluntarily waive his right to appeal. Sanders,

instead, argues that enforcement of the appellate waiver would work a miscarriage of

justice.

       Sanders does not tether his argument that enforcement of the waiver will work a

miscarriage of justice to his claims of sentencing error. Rather, he bases his argument on

the assertion that, had the resolution of his appeal not been delayed due to no fault of his

own, it is unlikely that the government would have invoked the appellate waiver or, if the

waiver had been invoked, that this Court would have enforced it.

       In support of his assertion that at the time he filed his notice of appeal, “the

government was not consistently invoking appellate waivers” (Sanders’s Reply Br. at 9),

Sanders cites but two cases decided around the time this Court should have decided

Sanders’s appeal in which the government did not invoke the defendants’ appeal waivers.

This showing is both insufficient and irrelevant. First, it is sheer speculation that the

government would not have invoked the appeal waiver in this case in 2008. Two cases

certainly do not establish a practice of foregoing enforcement of appeal waivers. And

second, the fact of the matter is that the government has sought to enforce the appeal

waiver in this matter, thus squarely presenting us with the question of whether it is

enforceable.

       Sanders also contends that at the time that his appeal would have been decided in

the ordinary course of this Court’s proceeding, “this Circuit had not yet expanded its

                                              3
general approval of waivers to the broad one-way waiver at issue here.” (Id.) There is

nothing in our case law, including the cases Sanders cites, that suggests this Court only

recently has enforced broad appellate waivers. And Sanders recognizes that in United

States v. Corso, 549 F.3d 921 (3d Cir. 2008), we enforced a broad appeal waiver that was

materially indistinguishable from that presented here. Significantly, the appeal in Corso

was filed on September 28, 2007, approximately two months before Sanders filed his

notice of appeal. Accordingly, it cannot be credibly argued that we would not have

enforced the appeal waiver in this case because of its breadth. On the contrary, the fact

that a challenge to a sentencing guideline calculation did not survive the appeal waiver in

Corso strongly supports the conclusion that the appeal waiver in this case, which

concerns the District Court’s exercise of discretion in imposing a sentence at the bottom

of an unchallenged guideline calculation, would have been enforced in 2008 just as it is

being enforced today.

       Moreover, from our review of the record, Sanders’s sentencing challenges would

not support a finding of a miscarriage of justice. Indeed, “it will be a rare and unusual

situation when claims of an unreasonable sentence, standing alone, will be sufficient to

invalidate a waiver because of a miscarriage of justice.” United States v. Jackson, 523

F.3d 234, 244 (3d Cir. 2008). Because the claims that Sanders received a procedurally

and substantively unreasonable sentence do not involve the “unusual circumstances” that

we have held may merit setting aside a valid waiver of appeal to avoid a miscarriage of

justice, see id., we will enforce the appellate waiver contained in the plea agreement and

will not reach the merits of the appeal.

                                             4
For the foregoing reasons, we will affirm the judgment of the District Court.




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