                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1128




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-1128
                                    ____________

                           UNITED STATES OF AMERICA

                                            v.

                                    LUIS ROSADO
                              a/k/a MANUEL ROSADO
                                     a/k/a MANDO

                                      Luis Rosado,
                                           Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 03-cr-00509-2)
                      District Judge: Honorable J. Curtis Joyner
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 13, 2006

             Before: FISHER, ALDISERT and LOURIE,* Circuit Judges.

                                 (Filed June 14, 2006)
                                    ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.


      *
        The Honorable Alan D. Lourie, United States Circuit Judge for the Federal
Circuit, sitting by designation.
       Despite the presence of an appellate waiver provision in his plea agreement, Luis

Rosado appeals from the District Court’s imposition of a 144 month sentence following

his guilty plea to one count of distributing cocaine base. Because we find that Rosado

knowingly and voluntarily waived his right to appeal his sentence, we will dismiss the

appeal.

                                             I.

       As we write solely for the parties, and the facts are known to them, we will discuss

only those facts pertinent to our conclusion. On August 24, 2004, Rosado pleaded guilty

to one count of distribution of cocaine base pursuant to a written plea agreement he

entered into with the Government. The agreement contained a broad appellate waiver

provision, under which Rosado could appeal his sentence only in three narrow

circumstances: (1) if his sentence exceeded the applicable statutory maximum; (2) if the

sentencing judge erroneously departed upward from the otherwise applicable sentencing

guideline range; or (3) if the government appealed from the sentence. During the change

of plea hearing, Rosado acknowledged to the District Court that the appellate waiver

provision was an essential term of his plea agreement. The District Court thereafter

determined that Rosado’s plea was knowing and voluntary, and supported by evidence as

to each element of the offense.1 As a result, the court accepted Rosado’s guilty plea to

count one.


       1
       Rosado does not challenge on appeal any findings the District Court made at the
change of plea hearing.

                                             2
       After the probation office prepared a presentence investigation report, the District

Court conducted a sentencing hearing on January 6, 2005. The District Court agreed with

the probation office that Rosado had an offense level of 34 and a criminal history

category of VI. As a result, Rosado was subject to a sentencing guideline range of 262 to

327 months imprisonment. See U.S. Sentencing Guidelines Manual ch. 5, pt. A (2004).

The District Court subsequently granted the government’s motion for a downward

departure on the basis of Rosado’s substantial assistance, and ultimately sentenced

Rosado to 144 months imprisonment.2

                                             II.

       We apply a de novo standard of review when determining the validity of a guilty

plea agreement containing a waiver of appellate rights. United States v. Khattak, 273

F.3d 557, 560 (3d Cir. 2001). We will uphold Rosado’s waiver if he knowingly and

voluntarily waived his appellate rights, unless giving force to the waiver would work a

“miscarriage of justice.” Id. at 563.

       Rosado essentially argues that his sentence should be vacated and remanded

because the District Court erroneously used the mandatory guidelines range as the starting

point from which to downward depart. The government concedes that Rosado would

ordinarily be entitled to a Booker remand, see United States v. Davis, 407 F.3d 162 (3d




       2
      The District Court also sentenced Rosado to five years supervised release and
imposed a fine in the amount of $2,000.00.

                                             3
Cir. 2005) (en banc), but argues that we lack appellate jurisdiction because Rosado’s plea

agreement contained a valid appellate waiver provision. We agree.

         In our recent decision in United States v. Lockett, 406 F.3d 207, 212-14 (3d Cir.

2005), we held that a criminal defendant who executed an appellate waiver as part of his

guilty plea agreement was not entitled to resentencing in the wake of Booker. In Lockett,

the defendant voluntarily waived his appellate rights in connection with a signed guilty

plea agreement. After the District Court imposed sentence, the Supreme Court issued its

decision in Booker. The defendant urged us on appeal to vacate his sentence

notwithstanding the appellate waiver provision because the holding in Booker, rendering

the guidelines advisory, was unanticipated. We rejected this argument on the basis that

“[t]he possibility of a favorable change in the law occurring after a plea agreement is

merely one of the risks that accompanies a guilty plea.” Id. at 214. See also United

States v. Bradley, 400 F.3d 459, 463-66 (6th Cir. 2005); United States v. Sahlin, 399 F.3d

27, 30-31 (1st Cir. 2005); United States v. Rubbo, 396 F.3d 1330, 1334-35 (11th Cir.

2005).

         Similarly, we lack appellate jurisdiction in this case to vacate Rosado’s sentence.

Rosado acknowledged at his change of plea hearing that his plea agreement contained an

express waiver of appellate rights. The District Court determined that Rosado knowingly

and voluntarily waived those rights and pleaded guilty, a finding that Rosado has not

appealed. In addition, Rosado’s appeal is not premised on any of the narrow exceptions

enumerated to in the plea agreement. Rather, his sole ground for appeal rests on the

                                               4
District Court’s employment of a then-mandatory guidelines regime as a fixed point from

which to apply a downward departure. Our decision in Lockett, however, clearly

forecloses Rosado’s argument that Booker renders involuntary an otherwise valid

appellate waiver.

       For these reasons, we will dismiss Rosado’s appeal as inconsistent with the

appellate waiver in his guilty plea agreement.




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