                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 18-3352
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                              CARL FREDERIC SEALEY,
                                                Appellant
                                 ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. No. 2-17-cr-00347-001)

                       District Judge: Honorable Gerald J. Pappert
                                    ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                On September 13, 2019

           Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges

                                (Filed: February 27, 2020)

                                     ______________

                                        OPINION *
                                     ______________


*
 This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
RESTREPO, Circuit Judge


       Following his criminal convictions of one count of conspiracy to commit wire

fraud and one count of wire fraud, appellant, Carl Frederic Sealey, was sentenced to 78

months in prison for each count, to be served concurrently, plus three years of supervised

release, and restitution of $1,470,825. On appeal, he argues his guilty plea was not

knowingly entered, the government breached the plea agreement, and the District Court’s

denial of a hearing pertaining to the fraud loss amount was improper. For the reasons

that follow, we affirm the District Court’s Judgment.

                                             I.

       In 2017, a grand jury returned an indictment charging Sealey with one count of

conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 (Count One), and

thirteen counts of wire fraud and aiding and abetting, in violation of 18 U.S.C. §§ 1343

and 2 (Counts Two through Fourteen). Count One charged Sealey with conspiring to

defraud approximately 21 investors of more than $1.5 million based on false

representations and causing the transmission of writings, signals, and sounds by wire in

interstate and foreign commerce. Each of Counts Two through Fourteen charged Sealey

with defrauding one or more investors, and Count Fourteen in particular charged him

with defrauding an investor of $250,000 based on false representations and causing the

transmission of monies by wire in interstate and foreign commerce.




                                            2
       In June of 2018, pursuant to a written guilty plea agreement, Sealey pleaded guilty

to Counts One and Fourteen of the indictment. The agreement stated that the government

would move to dismiss Counts Two through Thirteen at the time of sentencing, which it

did. Sealey also waived his right to appeal his conviction or sentence, except under

conditions not present here.

       The plea agreement included stipulations that “as of the date of this agreement,”

Sealey has demonstrated acceptance of responsibility for his offense, making him eligible

for a downward adjustment under the Sentencing Guidelines. App. 62-63. The

agreement included no stipulation as to the amount of the fraud loss, and it did not

include any recommendation for any particular sentence. Instead, the agreement

permitted the government to “[m]ake whatever sentencing recommendation as to

imprisonment, fines, forfeiture, restitution, and other matters which the government

deems appropriate.” App. 60.

       At the plea hearing, following a thorough plea colloquy, the District Court

accepted Sealey’s guilty plea. At the sentencing hearing, the District Court found

Sealey’s total offense level was 27 and his criminal history category was I, resulting in an

advisory Sentencing Guidelines range of 70 to 87 months’ incarceration. The Court

imposed a sentence of 78 months in prison, three years supervised release, with a special

assessment of $200, and restitution of $1,470,825. Despite Sealey’s waiver of his right to

appeal, he now appeals his conviction and sentence.


                                             3
                                            II. 1

        On appeal Sealey essentially argues that when he pleaded to Counts One and

Fourteen, the government tricked him so that he didn’t understand the fraud loss amount

that would be considered for purposes of sentencing. The plea colloquy in the District

Court, however, reflects that Sealey knowingly and voluntarily pleaded guilty to Counts

One and Fourteen and waived his appellate rights, and he points to nothing in the

colloquy or the record that demonstrates that he was improperly induced into pleading

guilty or that the government breached the plea agreement.

        Although Sealey argues his plea was “induce[d]” by the government, he concedes

that he “knowingly pleaded to Counts One and Fourteen” of the indictment. See

Appellant’s Br. 10 (citing App. 60). He asserts, however, that he did not realize the loss

amount that would be included in a Sentencing Guidelines calculation as a result of his

plea.

        As explained, the government did drop the remaining twelve counts as agreed.

Further, the record includes the thorough plea colloquy in the District Court which

complied with Rule 11 of the Federal Rules of Criminal Procedure and reflects that

Sealey knowingly and voluntarily pleaded guilty to Counts One and Fourteen and waived

his right to appeal.




1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                             4
      Count One of the indictment explicitly charged him with conspiring to defraud

investors of more than $1.5 million based on false representations, and Sealey concedes

he knowingly pleaded to that count. The government agreeing to drop Counts Two

through Thirteen would not affect the loss amount explicitly alleged in Count One, and

Sealey points to nothing in the plea colloquy to support his position that he was somehow

tricked or improperly induced into pleading guilty. 2 Moreover, the government’s plea

memorandum pointed out that Sealey was pleading guilty to his involvement in the

extensive fraud scheme that defrauded numerous investors of more than $1.5 million.

Sealey confirmed at the change of plea hearing that he reviewed and discussed with his

lawyer that plea memorandum, and he agreed that the government “correctly and

accurately summarized the facts of the case against [him]” and that Sealey “fully admit[s]

those facts.” App. 45-46. Therefore, Sealey’s arguments that he was improperly induced

to plead guilty, that he unknowingly pleaded guilty to Counts One and Fourteen, and that

he reasonably did not know what the fraud loss amount for his convictions entailed fail.

      Sealey also similarly argues that the government breached its plea agreement

“through a show of bad faith” by inducing him to sign a plea agreement that

“contemplated the entire loss amount for all counts of the Indictment” such that Sealey

received “no substantive benefits” to his guilty plea. Appellant’s Br. 13. As mentioned,



2
  In addition, Sealey acknowledged at the plea hearing that he understood the total
maximum statutory prison sentence for the two counts to which he pleaded guilty and
that he understood that the Sentencing Guidelines were only advisory in any event.
                                            5
however, the record does not support the claim that the government improperly induced

Sealey to sign the plea agreement.

          While Sealey acknowledges that this alleged lack of substantive benefits would

not, on its own, render his plea agreement void, he argues that it does “lend itself to

analysis of the reasonable understanding of the parties during the plea negotiations.” Id.

As explained above, any understanding that pleading guilty to Counts One and Fourteen

did not involve the loss amounts which were explicitly alleged in those counts themselves

is not reasonable and does not support an assertion of “bad faith.” Indeed, the colloquy

supports the conclusion that Sealey’s plea was knowing and voluntary.

          In addition, the government points out that by pleading guilty under the

agreement, Sealey avoided the risk of multiple sentences on multiple counts, including

special assessments on every count. Moreover, signing such a plea agreement includes a

possibility of reaping the benefit that comes with accepting responsibility. Again, Sealey

points to nothing in the plea colloquy which supports the assertion that the government

somehow breached the agreement because the Court considered the fraud loss value that

was explicitly alleged in Count One, to which Sealey concedes he knowingly pleaded

guilty.

          Next, Sealey argues the government breached the plea agreement because it failed

to ask the Court to award him full credit for acceptance of responsibility. The

government acknowledges that at the time the plea agreement was executed it had

stipulated that Sealey had accepted responsibility. In particular, in the agreement, the
                                               6
parties agreed and stipulated that, “as of the date of this agreement,” Sealey had

demonstrated acceptance of responsibility for his criminal conduct, making him eligible

for a downward adjustment in the offense level under USSG § 3E1.1(a) and (b). App. 62

(emph. added).

       However, after Sealey entered the agreement and his plea, a probation officer

testified at the sentencing hearing that Sealey had failed to comply with his signed

agreement to provide all financial documents and truthfully report all information as to

monthly expenditures, income, assets, and liabilities. Although Sealey reported that he

was earning thousands of dollars a month, he failed to provide supporting documentation

as to where this income was coming from, despite many attempts by the probation office

to obtain such information from Sealey and his attorney. Further, the probation officer

testified that when Sealey was interviewed, he attempted to minimize his involvement in

the criminal activity to which he had pleaded guilty. Thus, Sealey’s argument that the

government breached the guilty plea agreement is without merit. Cf. United States v.

Bennett, 161 F.3d 171, 197 (3d Cir. 1998) (evidence of acceptance of responsibility may

be outweighed by conduct that is inconsistent with such acceptance).

       Finally, Sealey challenges the District Court’s denial of a loss amount hearing. In

particular, he argues that the District Court’s failure to hold a loss hearing was improper

because Sealey was allegedly “coerc[ed] by the government” into pleading guilty.

Appellant’s Br. 18. Because Sealey knowingly and voluntarily waived his appellate

rights, he waived these claims on appeal. Nevertheless, even assuming arguendo that
                                             7
these claims were not waived, they are without merit. As explained, Sealey knowingly

and voluntarily pleaded guilty to Counts One and Fourteen, and Count One explicitly

charged him with conspiring to defraud investors of over $1.5 million based on false

representations, so there was no error in failing to have a loss hearing since Sealey agreed

to the loss at the plea hearing.

       Accordingly, the judgment of the District Court is affirmed.




                                             8
