                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-10-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4278




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"USA v. Valentino" (2004). 2004 Decisions. Paper 402.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 03-4278
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                                JOHN G. VALENTINO,
                                                Appellant
                                   ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 03-cr-00367)
                      District Judge: Honorable Berle M. Schiller
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 13, 2004

               Before: RENDELL, BARRY and FISHER, Circuit Judges.

                                (Filed: August 10, 2004 )
                                     ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Defendant John G. Valentino was a bank vice-president who pled guilty to bank

fraud in violation of 18 U.S.C. § 1344. His plea agreement stated that he agreed to

restitution of $1,358,596 “as directed by the Court” and further included a waiver-of-
appeals provision. At sentencing, Valentino stated he had spent most of the money

entertaining clients and offered no further explanation. The district court found “there’s

no way you can dispose of 1.3 [million] without some clear record of where you spent it,”

and ordered Valentino to make monthly payments of at least $20,000 during supervised

release unless he could provide an itemized explanation of how the money was spent.

The court said it would revisit the payment schedule if he could produce such records.

       Valentino’s appeal fails at the threshold inquiry of jurisdiction. Paragraph 3 of the

agreement stated that Valentino would make restitution “as directed by the Court.”

Paragraph 10 waived appeal of the “conviction, sentence, or any other matter relating to

this prosecution.” Despite the waiver, Valentino could file a direct appeal “but may raise

only claims that” his sentence “exceeds the statutory maximum” or that the court

“erroneously departed upward from the otherwise applicable sentencing guideline range.”

       Valentino’s waiver precludes this appeal. “Waivers of appeals, if entered into

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

States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). Although waivers are strictly

construed, see id., even the narrowest construction of the phrase “any other matter

relating to this prosecution” embraces the restitution order. 1 Indeed, Valentino agreed to

make restitution “as directed by the Court,” underscoring that restitution did not fall


       1
         Defendant cites cases where Courts of Appeals refused to enforce a waiver of the
right to appeal the “sentence.” Such cases are inapposite because of the phrase “any other
matter relating to this prosecution,” which unambiguously includes the restitution order.

                                              2
within the narrow range of issues permitted to be appealed despite the waiver. See United

States v. Greger, 98 F.3d 1080, 1081 (8th Cir. 1996). Valentino does not challenge the

government’s assertion that the district court reviewed the waiver with Valentino and

assured that he entered the plea knowingly and voluntarily. Nor has he shown that

enforcement of the wavier would work a miscarriage of justice. See 18 U.S.C.

§ 3664(e); United States v. Voigt, 89 F.3d 1050, 1093 (3d Cir. 1996).

      Because we lack appellate jurisdiction, the appeal will be DISMISSED.

________________________




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