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


8-15-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2355




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Recommended Citation
"USA v. Paladino" (2008). 2008 Decisions. Paper 647.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/647


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                                                 NOT PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 __________

                     No. 07-2355
                     __________

          UNITED STATES OF AMERICA

                           v.

               ROBERT PALADINO,

                                     Appellant

                     __________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
           (D.C. Criminal No. 04-cr-00172)
     District Judge: Honorable Gary L. Lancaster
                     __________

      Submitted Under Third Circuit LAR 34.1(a)
                  on June 30, 2008

Before: RENDELL, SMITH, and FISHER, Circuit Judges.

              (Filed August 15, 2008 )

                     __________

             OPINION OF THE COURT


                     __________
RENDELL, Circuit Judge.




       Robert Paladino appeals his sentence of 121 months’ imprisonment for distributing

material depicting the sexual exploitation of a minor, in violation of 18 U.S.C.

§ 2252(a)(1). Paladino contends that the District Court erred when it increased his base

offense level by two levels, pursuant to U.S.S.G. § 3C1.2, based on his creation of a

substantial risk of serious bodily injury or death when he fled from law enforcement

officers who were trying to arrest him.

       The government contends that Paladino’s challenge to his sentence must fail, first,

because the § 3C1.2 enhancement was warranted and, second, because Paladino waived

his right to appeal his sentence in his plea agreement (the “Plea Agreement”) subject to a

few exceptions not present here. We credit the latter argument and will, therefore, affirm.

       The District Court had subject matter jurisdiction over Paladino’s case pursuant to

18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). However, “we

will not exercise that jurisdiction to review the merits of [the defendant’s] appeal if we

conclude that []he knowingly and voluntarily waived h[is] right to appeal unless the result

would work a miscarriage of justice.” Id.




                                              2
       Paladino does not reference his waiver in his brief on appeal, but it is referred to

by the government and is reflected in the Plea Agreement. Paragraph 13 of the Plea

Agreement states:

       Paladino waives the right to take a direct appeal from his conviction or
       sentence . . . subject to the following exceptions:

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

              (b) If (1) the sentence exceeds the applicable statutory limits . . . ,
              or (2) the sentence unreasonably exceeds the guideline range
              determined by the Court under the Sentencing Guidelines . . . .

(Supp. App. 3). Here, none of these exceptions apply. The government has not appealed,

Paladino’s sentence does not exceed the 20-year statutory maximum, and the sentence

falls within the Guidelines range of 121-151 months determined by the District Court.

We note that Paladino’s sentence also falls within what the Guidelines range would have

been — 97-121 months — had the District Court not applied the § 3C1.2 enhancement.

See U.S.S.G. ch. 5, pt. A.

       Again, if we are to enforce a waiver, we must make certain that it is knowing and

voluntary, and that enforcing it would not work a miscarriage of justice. Gwinnett,

483 F.3d at 203; United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). We note

that at the change of plea hearing, counsel for the government reviewed aloud the

contents of the Plea Agreement, explicitly stating that Paladino was waiving his right to

appeal with the limited exceptions recounted above. During the proceeding, Paladino

acknowledged that there were appeal waivers in the Plea Agreement, and the Court

                                               3
granted a recess so that defense counsel could review the scope of the waivers with

Paladino and address any questions Paladino had about them. After that recess, Paladino

indicated that he was ready to proceed. The District Court then accepted the plea, finding

that it was “knowingly and voluntarily made.” (Supp. App. 133-34.) In light of these

facts, and in light of Paladino’s failure to file a reply brief or otherwise contend that his

waiver was unknowing, involuntary, or would work a miscarriage of justice if enforced,

we will AFFIRM the Judgment and Commitment Order of the District Court.




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