                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-4434
                                     _____________

                             UNITED STATES OF AMERICA

                                             v.

                                   JASON SHEPPARD,
                                             Appellant
                                     ______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (District Court No. 2-13-cr-00278-001)
                      District Judge: The Honorable Cathy Bissoon
                                    ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 September 26, 2017
                                  ______________

         Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit Judges.

                                 (Filed: October 24, 2017)

                               _______________________

                                      OPINION *
                               _______________________

McKEE, Circuit Judge.

       Jason Sheppard appeals the sentence imposed by the District Court following his


*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
guilty plea to one count of mail fraud in violation of 18 U.S.C. § 1341. Sheppard argues

that: 1) his criminal history category overstated the seriousness of his criminal history

and his likelihood of recidivism; and 2) the District Court erred by declining to grant him

a downward departure or variance under U.S.S.G. § 5G1.3. However, we decline to

reach the merits of Sheppard’s appeal because his plea agreement contained an appellate

waiver.

                                             I. 1

       As noted, Sheppard’s plea agreement contained a waiver of his appellate rights by

which he agreed to waive his right to appeal his conviction or sentence subject to three

exceptions which do not apply and which he does not now assert. Rather than assert that

one or more of the exceptions to the appellate waiver apply, Sheppard refuses to discuss

the applicability of the waiver in his opening brief because the government “has not

invoked the waiver.” 2

       However, we have never held that the Government must affirmatively assert an

appellate waiver in a motion before we will enforce it according to its terms. It is not

disputed that Sheppard reviewed the plea agreement containing the waiver with his

counsel and then knowingly plead guilty. Moreover, the District Court thoroughly

fulfilled its obligations under Federal Rule of Criminal Procedure 11(b)(1)(N) and


1
  The District Court had subject matter jurisdiction over the case pursuant to 18 U.S.C. §
3231. This Court has appellate jurisdiction over this matter under 28 U.S.C. § 1291, and
has jurisdiction pursuant to 18 U.S.C. § 3742 to review the sentence imposed on the
defendant.
2
  Appellant’s Br. at 11.

                                              2
ensured that Sheppard appreciated the effect of the appellate waiver by asking him to

verify whether he understood the three exceptions contained therein. 3 He indicated that

he did. 4 Accordingly, unless enforcing the waiver would result in a miscarriage of justice,

it should be enforced as agreed to. 5

       We have reviewed the sentencing transcript and it is clear that enforcing the

appellate waiver will not result in a miscarriage of justice. Our review of the record

reveals no error on the part of the District Court that would have prejudiced Sheppard.

Moreover, Sheppard agreed with the Government’s description of his crimes 6 and, as

discussed, knowingly and voluntarily signed the appellate waiver before pleading guilty

to one count of mail fraud.

                                             II.

       For the reasons set forth above, we dismiss Sheppard’s appeal and affirm the

judgment of the District Court.




3
  App. at 130–31A.
4
  Id.
5
  “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).
6
  App. at 136–37A.
                                             3
