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


1-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5058




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                      No. 06-5058
                                      __________

                           UNITED STATES OF AMERICA

                                           v.

                                  ANTHONY JONES

                                              Appellant
                                      __________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                         (D.C. Criminal No. 06-cr-00001-2E)
                       District Judge: Hon. Sean J. McLaughlin
                                     __________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 30, 2007

                  Before: RENDELL and NYGAARD, Circuit Judges,
                           and VANASKIE * , District Judge

                               (Filed: January 17, 2008)




                                       OPINION
                                      __________

VANASKIE, District Judge.


  *
   Honorable Thomas I. Vanaskie, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
       Anthony Jones (“Jones”) appeals from his sentence of 292 months imprisonment

imposed by the District Court following Jones’s plea of guilty to conspiracy to possess

with the intent to distribute and distribution of cocaine base and cocaine. Jones pled

guilty pursuant to a written plea agreement in which he waived his right to appeal the

sentence. Jones argues that the waiver is invalid, that its enforcement will result in a

miscarriage of justice, and, therefore, that this Court should disregard the waiver and

review the merits of his appeal. We disagree, and hold the waiver valid and enforceable,

thus precluding consideration of the substantive issues presented by Jones’s appeal.

Consequently, we affirm the District Court’s judgment.

                                              I

       On January 10, 2006, a grand jury in the Western District of Pennsylvania indicted

Jones and eight others on conspiracy and drug distribution charges. Jones and the

Government subsequently negotiated and executed a written plea agreement in which

Jones agreed to plead guilty to the conspiracy charge. Of import to this appeal is

Paragraph A(8) of the agreement, which states that Jones “waives the right to take a direct

appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742.”

(App. 17.) The waiver was subject to two exceptions:

       (a)    If the United States appeals from the sentence . . . .

       (b)    If (1) the sentence exceeds the applicable statutory limits set forth in
              the United States Code, or (2) the sentence unreasonably exceeds the
              guideline range determined by the Court under the Sentencing

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              Guidelines. . . .

(Id. at 17-18.) The agreement clarified that the “foregoing reservations of the right to

appeal on the basis of specified issues do not include the right to raise issues other than

those specified.” (Id. at 18.) Both Jones and his attorney signed the agreement.

       Jones pled guilty on July 25, 2006. The District Court conducted an extensive

colloquy of Jones to ascertain his understanding of the terms of the plea agreement,

including the waiver of appeal rights. The District Court directed Jones’s attorney and

the Assistant United States Attorney (“AUSA”) to explain to Jones the consequences of

the appeal waiver and its narrow exceptions. The District Court then asked Jones whether

he understood and agreed with the explanation, to which Jones – under oath subject to

penalty of perjury – responded affirmatively.

       On December 5, 2006, the District Court conducted an evidentiary hearing to

resolve the Government’s objection to the recommendation in the Presentence

Investigation Report that Jones receive only a two-level enhancement in his offense level

due to his leadership role in the drug trafficking conspiracy. At the conclusion of the

evidentiary presentation, Jones objected to any enhancement in his offense level for his

role in the jointly-undertaken criminal activity. Finding that the testimony showed Jones

to be the “central cog in this conspiracy,” (App. 108), the District Court sustained the

Government’s objection and overruled the defense objection. The resultant four-level

enhancement for role in the offense under U.S.S.G. § 3B1.1(a) produced a net offense



                                              3
level of 35. Combined with a criminal history category of VI, Jones’s offense level

resulted in an advisory guideline range of 292 to 365 months imprisonment. After

hearing from Jones, his attorney, and the AUSA, the District Court imposed a prison term

at the bottom of the advisory guideline range, 292 months. Despite the appeal waiver,

this timely appeal followed.

                                             II

                                            A.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). This Court retains jurisdiction over an

appeal even though the defendant has executed a plea agreement containing an appeal

waiver. United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). If, however, we

find that the defendant knowingly and voluntarily waived his right to appeal, and that the

enforcement of the waiver will not work a miscarriage of justice, we refrain from

exercising our jurisdiction. Id. Our review of appeal waivers is de novo. United States

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

                                            B.

       In Khattak, this Court held that “[w]aivers of appeals, if entered into knowingly

and voluntarily, are valid, unless they work a miscarriage of justice.” Id. at 563. The

defendant shoulders the burden of demonstrating why the waiver should not be enforced.

Id.



                                             4
       “In determining whether a waiver of appeal is ‘knowing and voluntary,’ the role of

the sentencing judge is critical.” Id. Thus, we examine the guilty plea colloquy

conducted by the District Court for its compliance with Fed. R. Crim. P. 11. Before

accepting a defendant’s guilty plea, the District Court must address the defendant in open

court to “inform the defendant of, and determine that the defendant understands . . . the

terms of any plea-agreement provision waiving the right to appeal or to collaterally attack

the sentence.” Fed. R. Crim. P. 11(b)(1)(n).

       Here, the District Court clearly complied with this rule. At Jones’s change of plea

hearing, the District Court asked Jones whether he read the plea agreement, discussed it

with his attorney, agreed with and understood its terms and conditions, and signed the

plea agreement. Jones answered “yes” to each question. The court paid particular

attention to the appeal waiver, directing Jones’s attorney and the AUSA to explain the

consequences of the waiver and confirming Jones’s understanding and agreement with

their explanation.

       Jones does not challenge the District Court’s compliance with Fed. R. Crim. P.

11(b)(1)(n). Instead, Jones argues that the waiver is invalid because he did not know at

the time he agreed to waive his appeal rights that the District Court would “engage in

unconstitutional sentencing practices.” (Appellant’s Reply Br. at 4.) This contention is

baseless. The District Court had no obligation to advise Jones of hypothetical sentences

in order to assure a knowing and voluntary waiver of appeal rights. The District Court



                                               5
did, however, explain to Jones that his sentence could be more or less severe than that

anticipated by Jones or provided for by the guidelines, and that in such case Jones would

be bound by his guilty plea and likely unable to appeal the sentence. Jones represented

that he understood this explanation. Accordingly, we hold that Jones knowingly and

voluntarily waived his right to appeal.

       Jones also contends that enforcement of the waiver will work a miscarriage of

justice. In Khattak, this Court recognized that “[t]here may be an unusual circumstance

where an error amounting to a miscarriage of justice may invalidate the waiver.”

Khattak, 273 F.3d at 562 (emphasis added). We declined to delineate specific situations

where an appeal waiver may be unenforceable, but rather adopted the approach of United

States v. Teeter, 257 F.3d 14 (1st Cir. 2001), which considers several factors before

relieving a defendant of his waiver: the clarity, gravity, and character of the error; the

error’s impact on the parties; and the extent of the defendant’s acquiescence in the result.

Id. at 563 (quoting Teeter, 257 F.3d at 25-26); see also United States v. Shedrick, 493

F.3d 292, 298 n.6 (3d Cir. 2007).

       In this matter, Jones fails to identify, and our review of the record does not reveal,

any error committed by the District Court that, if left unchecked, would work a

miscarriage of justice. In this regard, Jones’s claims of constitutional error are without

merit. For instance, contrary to Jones’s arguments, the standard of proof for factual

findings relevant to the application of the advisory sentencing guidelines is



                                              6
preponderance of the evidence, and the maximum sentence for purposes of the right to

proof beyond a reasonable doubt in an advisory sentencing guidelines scheme is that

prescribed by the United States Code. See United States v. Grier, 475 F.3d 556, 561, 565,

568 (3d Cir. 2007) (en banc). The District Court adhered to these constitutional

requirements in imposing its sentence in this case. Furthermore, we observe that the

District Court, after considering the arguments of the parties and the relevant factors set

forth in 18 U.S.C. § 3553(a), sentenced Jones to a prison term of 292 months, the bottom

of his advisory guideline range. Thus, we discern no injustice that would warrant

relieving Jones of his waiver of the right to appeal. Consequently, we will enforce the

waiver, decline to review the substantive issues presented by Jones’s appeal, and affirm

the District Court.

                                             III

       For the reasons stated, we affirm the sentence imposed by the District Court.




                                              7
