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


2-12-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4897




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4897


                           UNITED STATES OF AMERICA

                                            v.

                             JACKIE RONALD SHIRRIEL,
                                               Appellant


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            D.C. Criminal No. 04-cr-0214-2
                     (District Judge: Honorable David S. Cercone)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 17, 2008
          Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges.

                                (Filed February 12, 2008)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Jackie Ronald Shirriel pleaded guilty to one count of conspiracy to distribute and

possess with intent to distribute cocaine, cocaine base, and marijuana. 21 U.S.C. § 846;
18 U.S.C. § 2(a)-(b). He appeals from his judgment of sentence.1 Because Shirriel

signed an effective waiver of appellate rights, we will affirm.

                                                  I.

         On October 27, 2005, the District Court imposed the statutory minimum sentence

of a 120-month term of imprisonment, five years of supervised release, and a $100 special

assessment. Shirriel timely appealed, contending the District Court failed to make an

“informed, independent determination” in finding Shirriel was not eligible to be

sentenced under the safety-valve provision, 18 U.S.C. § 3553(f). If applicable, the safety-

valve would have allowed the District Court to disregard the statutory minimum in

imposing Shirriel’s sentence. A defendant must meet five requirements to be eligible for

the safety-valve.2

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

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). But we refrain from exercising our

jurisdiction where a criminal defendant has effectively waived the right to appeal in a plea

agreement. United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007).



   1
       Shirriel’s co-defendant does not appeal.
   2
     The only one of the five provisions in dispute here is § 3553(f)(5), which requires
that “not later than the time of the sentencing hearing, the defendant has truthfully
provided to the Government all information and evidence the defendant has concerning
the offense or offenses that were part of the same course of conduct or of a common
scheme or plan, but the fact that the defendant has no relevant or useful other information
to provide or that the Government is already aware of the information shall not preclude a
determination by the court that the defendant has complied with this requirement.”

                                                  2
                                            II.

       We enforce a waiver of the right to appeal if the waiver is entered into knowingly

and voluntarily, unless it works a miscarriage of justice. United States v. Khattak, 273

F.3d 557, 558 (3d Cir. 2001). We strictly construe the language of the waiver, but if we

find the waiver applies by its terms, it is the defendant’s burden to show the waiver

should not be enforced. Id. at 562-63. If the defendant fails to do so, we affirm without

reaching the merits of the appeal. Gwinnett, 483 F.3d at 206. Our review is plenary.

Khattak, 273 F.3d at 560.

       Shirriel’s plea agreement contains an express waiver of the right to appeal his

conviction or sentence, with three exceptions.3 This appeal falls within the language of

the waiver, and no exception applies. Our review of the record shows no reason why the

waiver should not be enforced according to its terms. When Shirriel entered his guilty

plea, the District Court conducted a thorough colloquy as required by Fed. R. Crim. P.

11(b). See Khattak, 273 F.3d at 560. The Court found Shirriel entered the plea


   3
     The waiver provision reads, in relevant part: “Jackie Ronald Shirriel waives the right
to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18
U.S.C. § 3742, subject to the following exceptions: (a) if the United States appeals from
the sentence, Jackie Ronald Shirriel may take a direct appeal from the sentence. (b) If (1)
the sentence exceeds the applicable statutory limits set forth in the United States Code, or
(2) the sentence unreasonably exceeds the guideline range determined by the Court under
the Sentencing Guidelines, Jackie Ronald Shirriel may take a direct appeal from the
sentence. The foregoing reservations of the right to appeal on the basis of specified issues
do not include the right to raise issues other than those specified. Jackie Ronald Shirriel
further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255,
attacking his conviction or sentence, and the right to file any other collateral proceeding
attacking his conviction or sentence.”

                                             3
agreement knowingly, voluntarily and intelligently. Shirriel testified he signed the plea

agreement and was fully aware of its contents. The Government’s attorney recited the

part of the plea agreement in which Shirriel waived the right to appeal. Shirriel and his

lawyer acknowledged the Government’s recitation of the plea agreement’s contents in

open court was accurate. The Court found Shirriel “is competent, that he knows and

understands his rights, including his right to a jury trial, and he understands the

consequences of waiving those rights, that he understands the minimum and the

maximum penalties.” At the sentencing hearing, the Court advised Shirriel he had a

“right to take an appeal, except to the extent that you waived your appellate rights as part

of the plea agreement.” Although Shirriel said at the sentencing hearing that he would

not have signed the plea agreement had he known what position the Government would

take with respect to the “safety-valve” provision, this does not show the waiver of

appellate rights in the plea agreement was not knowing and voluntary. “Waivers of the

legal consequences of unknown future events are commonplace.” Id. at 561.

       Since the waiver was knowing and voluntary, we can reach the merits only to

avoid a “miscarriage of justice.” Id. at 562. We consider the “clarity of the error, its

gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a

statutory maximum), the impact of the error on the defendant, the impact of correcting the

error on the government, and the extent to which the defendant acquiesced in the result.”

Id. at 563 (quoting United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001)). Shirriel



                                               4
provides no reason why a miscarriage of justice would result from enforcing the waiver in

this case, and our review of the record reveals none.4

                                            III.

       Because Shirriel effectively waived his right to bring this appeal, we will affirm.




   4
      Even if we could reach the merits, we would affirm. The District Court found
Shirriel had not shown by a preponderance of the evidence that he satisfied the fifth
safety-valve requirement. Contending the District Court merely adopted the
Government’s position, Shirriel relies on United States v. White, 119 F.3d 70, 73 (1st Cir.
1997), which reasoned that because the district court, rather than the Government, makes
the ultimate safety-valve finding, the court is not limited to the Government’s arguments
in its analysis. In White, the court of appeals rejected the defendant’s argument that the
district court had improperly relied on a sua sponte credibility finding in denying
application of the safety-valve. Id. Here, Shirriel contends not that the District Court
made an improper sua sponte finding, but rather that its analysis was not sufficiently
thorough. We disagree. The District Court made a finding on the record that Shirriel had
not met his burden under § 3553(f), and the record supports the conclusion that Shirriel
failed to provide a true and complete account of all requisite information and evidence.
The District Court’s finding that Shirriel did not provide the Government with all the
information and evidence was not clearly erroneous. See United States v. Sabir, 117 F.3d
750, 752-54 (3d Cir. 1997).

                                             5
