                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 10-2744
                                 _____________

                       UNITED STATES OF AMERICA,

                                        v.

                           ANTOINE RANDALL WAITERS,
                                             Appellant
                               _____________

                 On Appeal from the United States District Court
                     For the Eastern District of Pennsylvania
                            (D.C. No. 06-cr-00014-001)
                 District Judge: Honorable James Knoll Gardner
                                  _____________

                  Submitted Under Third Circuit L.A.R. 34.1(a)
                              October 06, 2011

 BEFORE: McKEE, Chief Judge, FUENTES, and GREENBERG, Circuit Judges

                        (Opinion Filed: October 25, 2011)
                                _____________

                           OPINION OF THE COURT
                               _____________


FUENTES, Circuit Judge.

      Antoine Randall Waiters (“Waiters”) appeals from his conviction and

sentence of 78 months‟ imprisonment, arguing that: (1) the District Court

erroneously rejected his motion to withdraw his guilty plea; (2) the enforcement of
the appellate waiver would work a miscarriage of justice; (3) the District Court

committed procedural error, pursuant to the U.S.S.G. § 3E1.1, in failing to adjust

his applicable offense level downward; and (4) his request for a sentencing

variance was improperly denied. For the reasons expressed below, we will affirm

the District Court‟s Order and sentence.1

                                                I.

       Because we write primarily for the benefit of the parties, we set forth only

the facts and history that are relevant to our conclusion. In January 2006, the

grand jury returned an indictment charging Waiters with one count of possession

with intent to distribute five grams or more of cocaine base, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B), and one count of possession with intent to

distribute five grams or more of cocaine base within 1,000 feet of a school, in

violation of 21 U.S.C. § 860.

       Waiters began cooperating with the Government by participating in a series

of proffer sessions. The Government, then, offered Waiters a plea agreement

wherein he would plead guilty to both counts of the indictment and serve as a

cooperating witness. In August 2007, Waiters pleaded guilty to the indictment

subject to the written plea agreement, which specifically provided that:

       In exchange for the undertakings made by the government in
       entering his plea agreement, the defendant voluntarily waives all
       rights to appeal or collaterally attack the defendant‟s conviction,
       sentence, or any other matter relating to this prosecution, whether

1
We have jurisdiction to recognize this appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a)(1).
                                            2
       such a right to appeal or collateral attack arises under 18 U.S.C.
       § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision
       of law. This waiver is not intended to bar the assertion of
       constitutional claims that the relevant case law holds cannot be
       waived.

Appellee‟s App. at 9. Waiters reserved his right to file a direct appeal in only four

limited circumstances, including: (1) if the Government appealed his sentence; (2)

if his sentence exceeded the statutory maximum for the offense; (3) if the

sentencing judge imposed an erroneously upward departure; or (4) if the imposed

sentence was unreasonably higher than the Sentencing Guideline range. Id. at 9-

10.

       During a thorough plea colloquy, the District Court and counsel for the

Government read pertinent parts of the plea agreement, including the entire waiver

provision. Waiters acknowledged, under oath, that he read the plea agreement,

discussed it with his counsel, and that he had not been threatened or coerced into

signing it. The District Court, satisfied that it had been knowingly and voluntarily

made, accepted Waiters‟s guilty plea. Relying on the presentence report, the

District Court ultimately determined that Waiters should be assigned an offense

level of 28 and a criminal history category of I. This range yielded an advisory

sentence of 78 to 97 months. The District Court sentenced Waiters to, inter alia,

78 months‟ imprisonment.

       Waiters, then, stopped reporting to Pretrial Services and did not appear at

his sentencing hearing scheduled on February 3, 2009. After a fifth and final

proffer session, Waiters‟s cooperation efforts ultimately failed because the

                                          3
Government determined that he was not providing truthful and accurate

information regarding his recent criminal activities. As result, the Government

declined to make a 5K1.1 motion on his behalf and refused to recommend a

downward departure for acceptance of responsibility.

       On July 27, 2009, approximately two years after Waiters accepted the plea

agreement and less than a month after he was charged with new drug crimes in a

separate six-count indictment, he filed a motion to withdraw his guilty plea. After

hearing oral arguments and conducting sentencing hearings over three days, the

District Court denied the motion and sentenced Waiters to 78 months‟

imprisonment.

       This notice of appeal followed.

                                         II.

       An enforceable appellate waiver would preclude our exercise of jurisdiction

over the instant appeal; therefore, we first address the appellate waiver provision

in Waiters‟s plea agreement. We exercise plenary review in determining whether

Waiters‟s arguments on appeal are within the scope of the appellate waiver.

United States v. Goodson, 544 F.3d 529, 537 n.6 (3d Cir. 2008).

       To determine if Waiters‟s appellate waiver bars this appeal, we consider:

       1) „whether a defendant‟s waiver of the right to appeal [his] sentence
       was knowing and voluntary;‟ (2) „whether one of the specific
       exceptions set forth in the [plea] agreement prevents the enforcement
       of the waiver;‟ . . . ; and (3) „whether enforcing the waiver would
       work a miscarriage of justice.‟

Id. at 536 (quoting United States v. Jackson, 523 F.3d 234, 243 (3d Cir. 2008)).

                                          4
   A. Withdrawal of Plea

       We have held that a waiver of appeal, when entered into knowingly and

voluntarily, is valid, unless a miscarriage of justice would result. See United States

v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). Waiters first disputes that he

entered into his plea agreement knowingly and voluntarily. He alleges that his

attorney promised that he would “cash his own ticket” and serve no jail time if he

accepted the plea agreement. He now argues, through new counsel, that he is

innocent of both counts of the indictment and that he mistakenly entered the plea

agreement relying on his attorney‟s recommendation.

       We find that this argument lacks merit. Waiters acknowledged, during the

plea colloquy, that his plea agreement contained “no additional promises,

agreements or understandings other than those set forth in this written guilty plea

agreement, and that no additional promises, agreements, or understandings will be

entered into unless in writing and signed by all parties.” Appellee‟s App. at 11. A

review of the record reveals that the judge‟s colloquy was comprehensive and

satisfied the requirements of Rule 11(b)(1) of the Federal Rules of Criminal

Procedure. Waiters‟s consent to the agreement reflects a voluntary and knowing

waiver of his rights. His assertion of innocence is not credible and he has not

persuasively explained why he took a contrary position under oath at the plea

colloquy. Because we find the District Court provided a firm basis on which to



                                          5
uphold Waiters‟s acceptance of the plea agreement as knowing and voluntary, we

will affirm the Order denying his motion to withdraw his plea.

    B. Miscarriage of Justice

       Waiters insists that enforcing the appellate waiver would work a

miscarriage of justice. To this end, he claims that defense counsel was ineffective

for failing to file certain pretrial motions and for representing that Waiters would

serve no jail time if he accepted the plea agreement. Though in unusual

circumstances an error amounting to a miscarriage of justice may invalidate an

appellate waiver, the facts of this case do not present such a situation. Courts have

routinely deferred the issue of effectiveness of trial counsel to a collateral attack.

See United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). In accordance,

we will deny Waiters‟s claim of ineffective assistance of counsel without

prejudice.2 Nevertheless, we conclude that enforcement of Waiters‟s appellate

waiver would not result in a miscarriage of justice.

    C. Variance Request

       We next consider whether the District Court abused its discretion by not

stating its reasons for rejecting Waiters‟s request for a sentencing variance.

2
  We note the Government in its brief stated that “it is apparent that the assertions
of ineffectiveness would also fail as stand-alone ineffective assistance of counsel
claims.” Appellee‟s Br. at 42 n.5. The record, however, is not sufficient to allow
determination of the issue. Therefore, Waiters‟s claim is dismissed without
prejudice to his right to raise the ineffective assistance of counsel claim in a
collateral proceeding.

                                           6
Waiters received a sentence at the very bottom of the applicable sentencing

guideline range. Notwithstanding, he contends that the District Court should have

considered the policy objections to the crack-cocaine disparity in the U.S.

Sentencing Guidelines.3 Such a consideration falls within the discretion of the

presiding judge. We believe the District Court properly addressed the

circumstances of the offense and considered Waiters‟s policy arguments.

Accordingly, we find that the District Court did not abuse its discretion when it

imposed a within-guideline sentence.

    D. Sentencing

       Finally, Waiters argues that the District Court erred by refusing to grant

him a downward adjustment, pursuant to U.S.S.G. § 3E1.1, for acceptance of

responsibility. This argument lacks merit. His appellate waiver only preserved the

right to appeal an upward departure. Therefore, Waiters‟s appeal of his sentence

falls within the scope of the appellate waiver and is precluded.

                                         III.

       For the reasons stated above, we will affirm the Order and sentence

imposed by the District Court.




3
 Whether Waiters is eligible for a reduced sentence, based on the retroactive
application of the new crack-cocaine sentencing guidelines, is an issue properly
addressed, pursuant to 18 U.S.C. § 3582(c), to the District Court. Waiters is not
prejudiced should he wish to file a motion, pursuant to 18 U.S.C. § 3582(c)(2),
requesting to have his sentence reduced.
                                          7
