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


12-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4056




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                                            NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT




                  No. 07-4056




       UNITED STATES OF AMERICA

                        v.

          MICHAEL KOHLMILLER,

                                    Appellant




 On Appeal from the United States District Court
     for the Western District of Pennsylvania
            (D. C. No. 06-cr-00051-1E)
 District Judge: Honorable Maurice B Cohill, Jr.




   Submitted under Third Circuit LAR 34.1(a)
            on December 11, 2008

Before: McKEE, SMITH and ROTH, Circuit Judge


       (Opinion filed: December 30, 2008)




                 OPINION
ROTH, Circuit Judge:

          Michael Kohlmiller appeals the sentence imposed by the United States District

Court for the Western District of Pennsylvania. For the reasons discussed below, we will

affirm.

I. Background and Procedural History

          Because the facts are well known to the parties, we will discuss them only briefly

here.

          On September 12, 2006, a grand jury in the Western District of Pennsylvania

returned a fifty-seven-count indictment charging Michael Kohlmiller with forty-five

counts of bank fraud in violation of 18 U.S.C. § 1344, eleven counts of wire fraud in

violation of 18 U.S.C. § 1343, and one count of aggravated identity theft in violation of

18 U.S.C. § 1028(A). On March 28, 2007, pursuant to the parties’ plea agreement,

Kohlmiller pleaded guilty to Count One and Count Fifty-Seven; he acknowledged

responsibility for the conduct charged in the intervening counts. On October 9, 2007, the

District Court sentenced Kohlmiller to seventy-five months’ imprisonment. The District

Court also imposed five-years’ supervised release and ordered Kohlmiller to pay

restitution.

          In the parties’ plea agreement, Kohlmiller agreed to waive his 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 three exceptions. Those three exceptions are as follows: (1) the



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government appealed his sentence, (2) the sentence exceeded the statutory limits set forth

in the United States Code, or (3) the sentence unreasonably exceeded the Guidelines

range as determined by the District Court. Kohlmiller argues that the waiver agreement

does not bar this Court from addressing his argument that the District Court applied

improper enhancements during sentencing.

II. Analysis

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

under 28 U.S.C. § 1291.

       “Where, as here, the government invokes an appellate-waiver provision contained

in a defendant’s plea agreement, we must determine as a threshold matter whether the

appellate waiver prevents us from exercising our jurisdiction to review the merits of the

defendant’s appeal.” United States v. Corso, --- F.3d --- (3d Cir. December 15, 2008).

We will not exercise our jurisdiction if we conclude that the defendant knowingly and

voluntarily waived his right to appeal unless the result would “work a miscarriage of

justice.” See United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008); United States

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

       Kohlmiller first argues that he did not knowingly and voluntarily enter into the

waiver agreement because neither the government nor the District Court read the entire

waiver paragraph during the guilty-plea colloquy. To evaluate whether Kohlmiller

knowingly and voluntarily signed the waiver, we first look to the language of the



                                             3
agreement. Gwinnett, 483 F.3d at 203–04; see Goodson, 544 F.3d at 535. The language

of the plea agreement conveys a clear intent to bind Kohlmiller because it states that

“Michael Kohlmiller 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.” We next look to the colloquy

between the District Court and Kohlmiller to determine whether the District Court placed

Kohlmiller under oath and determined that he understood the terms of the waiver. See

Gwinnett, 483 F.3d at 204. The District Court satisfied this requirement because it asked

Kohlmiller whether he read the plea agreement, discussed it with his attorney, and

understood it. The District Court, furthermore, specifically asked Kohlmiller whether he

understood that the plea agreement “significantly circumscribed” his “appellate rights.”

Kohlmiller responded, “Yes, sir,” and asked no questions. Kohlmiller thus knowingly

and voluntarily entered into the waiver agreement.

       Kohlmiller also argues that this appeal falls within the third exception to the

waiver agreement. Under the third exception, Kohlmiller retained the right to appeal to

the extent that his “sentence unreasonably exceeds the guidelines range determined by the

Court.” Kohlmiller’s challenge fails because he does not argue that his sentence

“exceeded” the range determined by the District Court. Indeed, he concedes that the

sentence fell within the range. He, instead, attacks the District Court’s imposition of

enhancements, which resulted from the calculation of the Guidelines. See United States

v. Shedrick, 493 F.3d 292, 298 n.5 (3d Cir. 2007). As we noted in Shedrick, Kohlmiller



                                              4
waived his right to appeal an enhancement under the waiver agreement; he retained the

right to appeal only if the District Court upwardly departed from the Guidelines. Id.

       Finally, Kohlmiller argues that this Court should hear this appeal because the

enforcement of the waiver would work a miscarriage of justice because it was the product

of ineffective assistance of counsel. Kohlmiller argues that counsel was ineffective

because counsel should have advised him that the plea agreement was not supported by

consideration. Plea agreements are construed according to general contract-law

principles. See Corso, --- F.3d at ---; United States v. Schwartz, 511 F.3d 403, 405 (3d

Cir. 2008). It is axiomatic that contracts must be supported by consideration. See, e.g.,

Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002) (internal citations

omitted). We apply a fact-specific approach to determine whether a miscarriage of justice

will result from enforcement of a waiver of appellate rights. United States v. Khattak,

273 F.3d 557, 564 (3d Cir. 2001). We consider, inter alia, the clarity of the error, its

gravity, and its character. Id. Kohlmiller fails here because he does not identify any error

by counsel because consideration did, in fact, support the plea agreement—that is,

Kohlmiller obtained dismissal of fifty-five counts because the government moved to

dismiss them and the government, in return, obtained two guilty pleas.




                                              5
III. Conclusion

       For the reasons set forth above, we will affirm the judgment of sentence of the

District Court.




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