                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-3-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3319




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 07-3319


                            UNITED STATES OF AMERICA

                                               v.

                               FELIX ANTHONY CASTE,

                                                Appellant


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                            (D.C. Criminal No. 07-cr-00123)
                        District Judge: Honorable Alan N. Bloch


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   December 2, 2008

         Before: AMBRO, WEIS, JR., and VAN ANTWERPEN, Circuit Judges.

                                (Filed December 03, 2008 )




                               OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant Felix Caste appeals his July 25, 2007 sentence. Because Caste executed

a valid appellate waiver, we decline to exercise our jurisdiction to hear this appeal and
affirm the judgment of the District Court.

                                             I.

       Because we write solely for the parties, we will address only those facts necessary

to our opinion.

       Caste was charged with possession of child pornography in violation of 18 U.S.C.

§ 2252(a)(4)(B). According to the facts adduced at the plea hearing and contained in the

Pre-Sentence Report (PSR), Caste was found to be in possession of seven compact discs

containing several hundred still images and six video clips depicting child pornography

and a computer that contained traces of previously deleted child pornography.

       On June 18, 2007, Caste entered into a plea agreement with the Government. The

agreement contained a provision stating that Caste waives the right to take a direct appeal

from his conviction or sentence unless the Government files an appeal first, the sentence

exceeds the statutory maximum for the offense to which he pled guilty, or the sentence

unreasonably exceeds the recommended Guidelines range. The District Court, before

Caste’s formal guilty plea, held a hearing during which it verified that Caste had read and

understood the plea agreement.

       On July 25, 2007, after hearing arguments from both sides and explicitly following

the three-step sentencing process described in United States v. Gunter, 462 F.3d 237 (3d

Cir. 2006), the District Court sentenced Caste to 46 months’ imprisonment, to be

followed by supervised release for life. Caste filed a timely appeal, arguing that his



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sentence was procedurally unreasonable and that the District Court violated his

procedural due process rights during sentencing.

                                             II.

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This

Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See

United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007) (“[T]his court retains subject

matter jurisdiction over [an] appeal by a defendant who [has] signed an appellate

waiver.”). We review the validity of appellate waivers de novo. See United States v.

Khattak, 273 F.3d 557, 560 (3d Cir. 2001).

       In addressing the validity of an appellate waiver, this Court considers whether the

waiver was knowing and voluntary, whether one of the specific exceptions set forth in the

plea agreement prevents enforcement of the waiver, and whether enforcement of the

waiver would work a “miscarriage of justice.” United States v. Jackson, 523 F.3d 234,

243-44 (3d Cir. 2008); see also Khattak, 273 F.3d at 563 (“Waivers of appeal, if entered

into knowingly and voluntarily, are valid, unless they work a miscarriage of justice.”).

Appellant bears the burden of establishing that the appellate waiver should not be

enforced. See Khattak, 273 F.3d at 562-63.

       The record clearly demonstrates that Caste knowingly and voluntarily executed the

waiver. The language of the plea agreement is “clear as to its purpose and effect” to bind

Caste and the Government to its provisions. See Gwinnett, 483 F.3d at 203-04. The plea



                                             3
agreement unambiguously states that, notwithstanding certain exceptions, Caste “waives

the right to take a direct appeal from his conviction or sentence . . . [and] further waives

the right to file a motion to vacate sentence . . . and the right to file any other collateral

proceeding attacking his conviction or sentence.” The Rule 11 colloquy provides further

evidence that the waiver was valid. See Khattak, 273 F.3d at 563 (“In determining

whether a waiver of appeal is ‘knowing and voluntary,’ the role of the sentencing judge is

critical.”). During that colloquy, the District Court confirmed that Caste signed the plea

agreement and that he had reviewed it with his attorney. The District Court specifically

verified that Caste understood that he “entered into a plea agreement under which [he

has] waived some or all of [his] appeal rights, including the right to file a motion to

vacate sentence or any other collateral proceeding attacking [his] conviction or sentence.”

       As Caste validly waived his right to appeal, we must now determine whether one

of the specific exceptions set forth in the plea agreement prevents enforcement of the

waiver. They clearly do not. The Government has not filed an appeal. The sentence of

46 months, followed by supervised release for life, does not exceed the statutory

maximum and is at the bottom of the advisory Guidelines range of 46-57 months. Thus,

Caste’s appeal is not permitted under the specific exceptions listed in the plea agreement.

        Having established that Caste’s waiver of appeal was knowing and voluntary and

that none of the plea agreement’s exceptions is applicable, we must now determine

whether this case presents one of the “unusual circumstance[s]” where enforcement of the



                                                4
waiver would work a “miscarriage of justice.” See Khattak, 273 F.3d at 562; Gwinnett,

483 F.3d at 203. The miscarriage of justice determination is open ended and depends on

factors such as “‘[the] clarity of the error, its gravity, its character (e.g., whether it

concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the

error on the defendant, the impact of correcting the error on the government, and the

extent to which the defendant acquiesced in the result.’” Khattak, 273 F.3d at 563

(quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)).

       Caste argues that enforcement of the appellate waiver would work a miscarriage of

justice because his sentence of imprisonment and supervised release was unreasonable.

This Court has noted that, in light of Gall v. United States, 552 U.S. ----, 128 S.Ct. 586

(2007), and its “deferential abuse-of-discretion standard for reviewing sentencing appeals,

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.”

Jackson, 523 F.3d at 244. Review of the record reveals that the current case does not

present such a situation because the District Court, although it should have been more

thorough, conducted a minimally adequate discussion of the § 3553(a) factors during

sentencing.

       Caste next argues that enforcement of the waiver would work a miscarriage of

justice because the District Court violated his procedural due process rights by 1) quoting

sources at sentencing without previously notifying him of its intention to do so and 2) not



                                                5
providing Appellant with a meaningful right of allocution. Consideration of these

arguments in light of the Khattak factors reveals that enforcement of the appellate waiver

would not constitute a miscarriage of justice.

       The District Court may have erred in citing documents that were not in the record

without first notifying Caste of its intention to do so. See United States v. Nappi, 243

F.3d 758, 767 (3d Cir. 2001) (holding that a previous version of Federal Rule of Criminal

Procedure 32 requires reasonable prehearing disclosure of documents considered by the

District Court during sentencing); United States v. Ausburn, 502 F.3d 313, 323 n.14 (3d

Cir. 2007) (noting that Nappi’s analysis applies to the current Rule 32). Even if this is the

case, such an error would not constitute a miscarriage of justice. The materials relied on

by the District Court are readily available to the public and were cited for information that

is substantially similar to that contained in child pornography caselaw. See, e.g., Osborne

v. Ohio, 495 U.S. 103, 109-11 (1990) (detailing the many dangers posed child

pornography); United States v. Ketcham, 80 F.3d 789, 792-94 (3d Cir. 1996) (same). As

Caste has not indicated how, if given the proper notice and opportunity to comment, he

could have challenged the information in the reports in a manner that would have

persuaded the District Court to impose a lesser sentence, this alleged error did not impact

the defense and thus does not constitute a miscarriage of justice. See United States v.

Nappi, 243 F.3d 758, 770 (3d Cir. 2001).

       Caste’s second due process argument also fails to establish that enforcement of the



                                              6
waiver would work a miscarriage of justice. The District Court allowed Caste to exercise

his right of allocution prior to imposing a sentence. That it did so after announcing that it

was “probably clear . . . that [it is] the Court’s intention to sentence the defendant to the

bottom of the guideline range” does not constitute clear error, much less error sufficient

to result in a miscarriage of justice. See United States v. Burgos-Andujar, 275 F.3d 23, 30

(1st Cir. 2001) (“When a judge announces a sentence before hearing an allocution, it is

fair to assume that such a sentence is tentative and that the judge will consider the

defendant's statements before imposing a final sentence.”); United States v. Laverne, 963

F.2d 235, 238 (9th Cir. 1992) (holding that “allowing the defendant an opportunity to

make a statement before the end of the sentencing hearing but after the court had orally

indicated its views regarding the appropriate sentence” did not constitute error).

       Thus, as Caste knowingly and voluntarily executed a valid appellate waiver, this

Court declines to exercise its jurisdiction to hear his appeal. While we doubt the wisdom

of imposing a 46-month sentence on a nonviolent first-time offender in his early

seventies, such a sentence does not constitute a miscarriage of justice.

                                              III.

       We have considered all other arguments made by the parties, and we conclude that

no further discussion is necessary. For the foregoing reasons, we will affirm the District

Court’s judgment in all respects.




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