                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3931




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                              Nos. 06-3931/07-2372


                        UNITED STATES OF AMERICA

                                         v.

                             WESLEY WYCKOFF,

                                              Appellant in case 06-3931

                        UNITED STATES OF AMERICA

                                        v.

                    ANDREW J. PIERRE; a/k/a CARL CARTER
              a/k/a ANDREW PETERSON; a/k/a HANDY PIERRE

                                              Appellant in case 07-2372



                 On Appeal from the United States District Court
                           for the District of New Jersey
                   (D. C. Nos. 06-cr-00264-1 and 06-cr-00407)
District Judge: Hon. Stanley R. Chesler and Hon. Garrett E. Brown, Jr., Chief Judge


                    Submitted under Third Circuit LAR 34.1(a)
                             on September 24, 2007


             Before: AMBRO, JORDAN and ROTH, Circuit Judges

                       (Opinion filed: November 26, 2007)
                                      OPINION


ROTH, Circuit Judge:

       Wesley Wykoff and Andrew Pierre appeal from the judgments of sentence, imposed

by the United States District Court for the District of New Jersey. Wykoff and Pierre claim

that the District Court abused its discretion by imposing custodial sentences that run

consecutively to their undischarged state terms of imprisonment without adequately

considering the factors in 18 U.S.C. § 3553. Because these two cases present identical

issues, they were consolidated for purposes of disposition. For the reasons stated below, we

will affirm the judgments of the District Court.

I. BACKGROUND

       As the facts are well known to the parties, we give only a brief description of the

issues and procedural posture of the cases.

       A. Wykoff

       While Wycoff was serving a twelve-year New Jersey state sentence for armed

robbery, a one-count information was issued on April 4, 2006, charging him with conspiracy

to falsely make, forge, and counterfeit approximately $10,000 in Federal Reserve Notes

contrary to 18 U.S.C. § 471, in violation of 18 U.S.C. § 371. Wykoff agreed to plead guilty

to the information, and the plea agreement provided:

       Wesely Wykoff knows that he has, and voluntarily waives, the right to file any

       appeal, any collateral attack, or any other writ or motion, including but not

                                              2
       limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. §

       2255, which challenges the sentence imposed by the sentencing court if that

       sentence falls within the Guidelines range that results from the agreed total

       Guidelines offense level of 13.

After a colloquy with Wykoff, the District Court concluded that his decision to plead guilty

was knowing, intelligent, and voluntary, and accepted his plea. The District Court sentenced

Wykoff to 33 months’ imprisonment1 to run consecutively to his undischarged term of

imprisonment imposed by the State of New Jersey. Wykoff appealed.

       B. Pierre

       While Pierre was serving a seven-year New Jersey state sentence for drug trafficking

offenses, a one-count indictment was issued on May 25, 2006, charging him with illegal

reentry after removal for an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)

and (b)(2). Pierre agreed to plead guilty to the indictment, and the plea agreement provided:

       Andrew J. Pierre knows that he has and . . . voluntarily waives... the right to

       file any appeal, any collateral attack, or any other writ or motion, including but

       not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C.

       § 2255, which challenges the sentence imposed by the sentencing court if that

       sentence falls within or below the Guidelines range that results from the agreed

       total Guidelines offense level of 21.


       1
        Based on his Criminal History Category of VI, Wykoff’s total Guidelines offense
level of 13 resulted in a Guidelines range of 33 to 41 months.

                                               3
After a colloquy with Pierre, the District Court concluded that his decision to plead guilty

was knowing, intelligent, and voluntary, and accepted his plea. The District Court sentenced

Pierre to 82 months’ imprisonment2 to run consecutively to his undischarged term of

imprisonment imposed by the State of New Jersey. Pierre appealed.

II. JURISDICTION & STANDARD OF REVIEW

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

jurisdiction to review a judgment of sentence under 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a). See 18 U.S.C. §§ 3557, 3551.

       We review a district court’s decision to impose a concurrent or consecutive sentence

for abuse of discretion. United States v. Spiers, 82 F.3d 1274, 1277 (3d Cir. 1996).

Although we retain subject matter jurisdiction over an appeal by a defendant who had signed

an appellate waiver, “we will not exercise that jurisdiction to review the merits of [such]

appeal if we conclude that [the defendant] knowingly and voluntarily waived [his] right to

appeal unless the result would work a miscarriage of justice.” United States v. Gwinnett, 483

F.3d 200, 203 (3d Cir. 2007).



III. DISCUSSION

       Wykoff and Pierre concede that their appeal waivers in the plea agreements are valid

and that such waivers preclude them from filing any appeal challenging the sentence imposed


       2
        Based on his Criminal History Category of VI, Pierre’s total Guidelines offense level
of 21 resulted in a Guideline Range of 77 to 96 months’ imprisonment.

                                             4
so long as the sentence falls within or below the Guidelines range that results from the agreed

upon total Guidelines offense level. See United States v. Khattak, 273 F.3d 557, 562 (3d Cir.

2001) (explaining that “waivers of appeal, if entered into knowingly and voluntarily, are

valid”). Neither Wykoff nor Pierre claims that his sentence is inconsistent with his agreed

upon total Guidelines offense level. They assert nevertheless that those waivers are not

applicable to an appeal challenging the District Court’s imposition of a consecutive, rather

than concurrent, sentence. We do not agree.

       There is nothing in the record indicating that Wykoff and Pierre retained the right to

appeal the consecutive sentencing question to the exclusion of all others. In fact, the record

shows that Wykoff and Pierre anticipated the possibility that a consecutive sentence would

be imposed because each argued that the District Court should exercise its discretion to

impose a concurrent, rather than consecutive, sentence. The fact that a consecutive sentence

within the Guidelines, rather than a concurrent sentence, was imposed does not take the

sentence outside the area agreed upon in the appeal waiver.

       The law is clear that “by waiving the right to appeal, a defendant necessarily waives

the opportunity to challenge the sentence imposed, regardless of its merits.” Khattak, 273

F.3d at 561. Because Wykoff and Pierre do not claim, nor do we conclude, that the waivers

are invalid or that they result in a miscarriage of justice, we do not reach the merits of their

claims. See Gwinnett, 483 F.3d at 203, 206; see also Khattak, 273 F.3d at 562.

IV. CONCLUSION

       For reasons stated above, we will affirm the judgments of the District Court.

                                               5
