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


12-10-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4899




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                 Nos. 06-4899 / 07-2393


                           UNITED STATES OF AMERICA

                                            v.

                                  EVERTON ISAACS,

                                                 Appellant



                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                      (D.C. Criminal Action Nos. 05-cr-00478-01)
                      District Judge: Honorable Petrese B. Tucker


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 1, 2008


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

                            (Opinion filed December 10, 2008)



                                       OPINION

AMBRO, Circuit Judge

      Appellant Everton Isaacs pled guilty to four counts of distribution and possession

with intent to distribute a controlled substance—“crack” cocaine. The District Court for
the Eastern District of Pennsylvania sentenced Isaacs to 70 months’ imprisonment, three

years’ supervised release, a $1,000 fine, and a $400 special assessment. Isaacs raises

three issues on appeal: (1) that the District Court imposed an unreasonable sentence in

light of 18 U.S.C. § 3553(a); (2) that the Court committed a miscarriage of justice in

sentencing him—by considering the impermissible factor of race; and (3) that his speedy

trial rights were violated. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm

with one remand wrinkle.

                                             I.

       On August 11, 2005, Isaacs was arrested for selling or intending to sell a total of

116.3 grams of crack on six different occasions to an undercover agent for the

Pennsylvania Attorney General’s Bureau of Narcotics Investigation and Drug Control.

Isaacs retained attorney John Elbert to represent him. Elbert filed a notice of appearance

on September 13, 2005. With the exception of one motion to continue trial, and possibly

others, filed by Elbert,1 Isaacs made the following filings pro se: on November 25, 2005,

a motion for discovery; on March 9, 2006, a letter to the District Court requesting court-

appointed counsel since he was unsatisfied with Elbert’s representation; and on July 25,

2006, a motion to dismiss the indictment for denial of a speedy trial. On September 18,

2006, the District Court held a hearing and took steps to obtain court-appointed counsel



1
 Isaacs claims that Elbert filed only one motion on his behalf—a “Motion to Continue
Trial” on September 26, 2005. The Government, however, claims that there were
multiple defense motions filed, but that Isaacs has not included these in his appendix. We
need not reach this issue, as it has no effect on the result.

                                             2
for Isaacs. On September 27, 2006, it appointed Anna Durbin.

       On October 20, 2006, Isaacs filed a second pro se motion to dismiss the indictment

for denial of his speedy trial rights. The District Court denied this request five days later.

On October 29, Isaacs followed up with a letter to the District Court asserting a forced

waiver of his speedy trial rights, and seeking a continuance in the case. Five days hence,

in accordance with Isaacs’ letter, Durbin requested that trial be continued, and this was

granted by the District Court.

       On November 20, 2006, Isaacs filed a pro se motion for permission to appeal the

District Court’s denial of his speedy trial motion. Within a few days of filing, however,

he made arrangements to meet with his counsel and the Government, and on December 1,

the parties conducted an off-the-record proffer. Then, on January 3, 2007, after the filing

of several pleadings—including pretrial motions, proposed jury instructions, and a trial

memorandum by the Government—Isaacs agreed to plead guilty to four counts of the

indictment.

       As part of the plea agreement, the Government agreed to dismiss two of the six

counts of the indictment, to grant a three-level downward adjustment in the Guidelines’

calculation, and to recommend a sentence within the applicable Guidelines’ range for

acceptance of responsibility. In exchange, Isaacs agreed to limit his direct appeal rights

to only the following: (1) if the sentence on any count exceeded the statutory maximum

for that count; (2) if the sentencing judge erroneously departed upward pursuant to the




                                              3
Sentencing Guidelines; and/or (3) if the sentencing judge imposed an unreasonable

sentence above the final Sentencing Guidelines’ range determined by the Court.

       The statutory maximum for each of the four counts to which Isaacs pled was 40

years’ imprisonment, a $2,000,000 fine, a $100 special assessment, and a lifetime period

of supervised release. The Presentence Report calculated an offense level of 29,2 yielding

an estimated Guidelines’ range of 87 to 108 months’ imprisonment. At sentencing, Isaacs

requested a “safety valve” adjustment, which would allow the Court to impose a sentence

below the mandatory minimum five years and allow an additional two-level downward

adjustment in the Guidelines’ calculation. After the District Court questioned Isaacs

extensively, it gave him the benefit of the safety valve, thus reducing the offense level

from 29 to 27. This resulted in a final Guidelines’ range of 70 to 87 months.

       After establishing the Guidelines’ range, the District Court considered the 18

U.S.C. § 3553(a) factors and the evidence and arguments presented by the parties. The

Government then honored its part of the plea agreement and asked the Court to impose a

within-Guidelines sentence. The Court noted that it understood its discretion to give

Isaacs even less than the otherwise mandatory minimum of 60 months, but stated that it

saw no reason to do so. It then imposed the 70-month sentence.




2
 The crime of distribution and possession with intent to distribute a total of 116.3 grams
of crack cocaine was actually an offense level of 32, but as noted, pursuant to the plea
agreement Isaacs received a three-level reduction for acceptance of responsibility, thus
reducing his offense level to 29.

                                              4
       Isaacs claims that by mechanically sentencing at the bottom of the Guidelines’

range, the Court refused to exercise its discretion to take into account (1) the disparity

between the sentencing treatment of crack and powder cocaine, and (2) other mitigating

facts (including no previous convictions prior to age 44, coercion by way of threats to

Isaacs’ family, and a lack of recidivism risk), thereby imposing an illegal and

unreasonable sentence. As noted, Isaacs also claims a miscarriage of justice because the

Court allegedly sentenced him based on the impermissible factor of race, and violations

of his speedy trial rights regardless of the plea agreement waiver.

                                              II.

       Isaacs may only appeal his sentence if the issues raised fall within one of the

exceptions to the appellate waiver included in his plea agreement, or if the plea agreement

was not entered knowingly and voluntarily. Because Isaacs does not satisfy any of the

exceptions to the appellate waiver—the imposed sentence of 70 months was at the lowest

end of the Guidelines’ range—we will only discuss whether the plea was knowing and

voluntary.

       In determining this, the sentencing court must only ensure “that the defendant

understands . . . the terms of any provision in a plea agreement waiving the right to appeal

or to collaterally attack the sentence.” Khattak, 273 F.3d at 563. Here, the District Court

specifically asked Isaacs, “You have agreed that you would waive all your rights to

appeal or collaterally attack your sentence or prosecution in this case, do you understand

that?” Guilty Plea Hr’g at 11, United States v. Isaacs, No. 05-CR-478-1 (E.D. Pa. Jan. 3,

                                              5
2007). Isaacs responded, “Yes, your Honor.” Id. at 12. In this context, Isaacs’ guilty plea

was knowing and voluntary.

       We will enforce an appellate waiver made knowingly and voluntarily unless the

result would be a miscarriage of justice. United States v. Gwinnett, 483 F.3d 200, 203

(3d Cir. 2007). Isaacs claims that there was a miscarriage of justice because the sentence

was based on the impermissible factor of race. See United States v. Khattak, 273 F.3d

557, 562 (3d Cir. 2001) (“Some of our sister circuits have delineated specific instances in

which waiver-of-appeals provisions may be found invalid . . . [, such as when they are]

based on [the] constitutionally impermissible factor [of] race.”). This claim, however, is

not supported by evidence in the record.

       The Court’s decision not to exercise its discretion by imposing a sentence below

the Guidelines’ range hardly indicates bias. As noted above, the Court had already

granted Isaacs the benefit of the safety valve adjustment and determined that, because this

act already reduced the sentence calculation an additional two levels, there was no reason

to reduce it any further. For these reasons, Isaacs cannot claim a miscarriage of justice.

       Isaacs also may not challenge successsfully the reasonableness of his sentence

under United States v. Booker, 543 U.S. 220 (2005), nor any claimed violation of his

speedy trial rights. In United States v. Lockett, 406 F.3d 207 (3d Cir. 2005), we 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. Further, we have held that “the right to a

                                             6
speedy trial is non-jurisdictional, and is therefore waived by an unconditional and

voluntary guilty plea.” Washington v. Sobina, 475 F.3d 162, 166 (3d Cir. 2007).

       This, however, does not end our inquiry. On November 1, 2007, the Sentencing

Commission adopted Amendment 706 to the advisory Guidelines, which permits a two-

level decrease in the base offense levels for crack offenders. See United States v.

Williams, 282 Fed. Appx. 119, 121 (3d Cir. 2008). And on March 3, 2008, this

amendment became retroactive. See id. In United States v. Wise, 515 F.3d 207 (3d Cir.

2008), we noted that appellants could possibly obtain some benefit from Amendment 706

by filing an 18 U.S.C. § 3582(c)(2) motion in the District Court, asking for a sentence

modification based on the retroactive amendment to the Sentencing Guidelines. Id. at

220-21. Isaacs is free to file a motion under § 3582(c)(2). However, this additional step

can be avoided if the District Court raises the motion sua sponte, something it is expressly

authorized to do under § 3582(c)(2). We encourage the Court to consider this simplified

approach under which it could proceed to determine whether Amendment 706 warrants a

sentencing reduction in this case.

                                     *   *   *   *   *

       Based on Isaacs’ waiver of his right to appeal, we affirm the judgment of the

District Court save for one aspect of the sentence. The matter is remanded to the District

Court so that it can consider whether to reduce Isaacs’ sentence pursuant to 18 U.S.C.

§ 3582(c)(2) (it being understood that we express no opinion on whether the Court should

reduce the sentence in light of Amendment 706).

                                             7
