                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4785




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"USA v. Whitner" (2009). 2009 Decisions. Paper 1971.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1971


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-4785


                           UNITED STATES OF AMERICA

                                           v.

                            REGIE EDWARD WHITNER,
                                          Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Crim. No. 07-cr-00190)
                District Judge: The Honorable Donetta W. Ambrose


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 15, 2009


             Before: SLOVITER, BARRY, and SILER, JR.,* Circuit Judges

                           (Opinion Filed: January 29, 2009)


                                       OPINION




*
 The Honorable Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
BARRY, Circuit Judge

          Regie Whitner appeals his sentence of 235 months’ imprisonment for conspiring to

distribute and possess with intent to distribute five kilograms or more of cocaine in

violation of 21 U.S.C. § 846. Whitner argues that his sentence is unreasonable because

the District Court mechanically applied the guideline range calculated in his Presentence

Investigative Report (“PSR”) without due consideration of the other sentencing factors

outlined in 18 U.S.C. § 3553(a).

          The government contends that Whitner’s argument must fail because (1) the

within-guidelines sentence was reasonable, and (2) Whitner waived his right to appeal his

sentence in his plea agreement subject to several inapplicable exceptions. Relying on the

latter contention, we will affirm.

          We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). However, “we

will not exercise that jurisdiction to review the merits of [a defendant’s] appeal if we

conclude that []he knowingly and voluntarily waived h[is] right to appeal unless the result

would work a miscarriage of justice.” Id.

          Whitner does not reference his waiver of appeal in his appellate brief. It is,

however, contained in the plea agreement, which is included in the Supplemental

Appendix submitted by the government. (S.A. 26-30.) Section A.5 of the plea agreement

states:


                                                2
       Regie Edward Whitner waives the right to take a direct appeal from his
       conviction or sentence . . . subject to the following exceptions:

              (a) If the United States appeals 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 . . . .

(S.A. 27.) None of the exceptions apply here: the government has not appealed,

Whitner’s sentence does not exceed the statutory maximum of life, and the sentence

imposed falls within the guideline range of 235-293 months determined by the District

Court.1

       As noted above, we must ensure that Whitner entered into the waiver knowingly

and voluntarily, and that enforcement of the waiver would not work a miscarriage of

justice. Gwinnett, 483 F.3d at 203; United States v. Khattak, 273 F.3d 557, 562-63 (3d

Cir. 2001). At the change of plea hearing, Whitner appeared in open court, heard a

recitation of the content and scope of his plea agreement, including the appellate waiver

(S.A. 12), and acknowledged that it accurately described the agreement he had reached

with the government (S.A. 14). The District Court then specifically asked Whitner


   1
      We note that the District Court applied a downward departure of one criminal
history category pursuant to U.S.S.G. § 4A1.3(b)(1) based on its conclusion that the
recommended criminal history category of VI overstated the seriousness of two of
Whitner’s prior convictions for relatively minor drug offenses. (See A. 7, 10, 33.) This
reduced the guideline range from 262-327 months, as recommended in the PSR, to 235-
293 months. Whitner argues that, even with this reduction, the guideline range overstated
his criminal history.

                                              3
whether he understood that he was waiving his right to appeal subject to the exceptions

stated above. (S.A. 16.) Whitner responded affirmatively. (S.A. 16-17.) The District

Court thereafter accepted the plea, finding that it was “knowing and voluntary.” (S.A. 23.)

       In light of the foregoing, and Whitner not contending that his waiver was

otherwise unenforceable, we will affirm the judgment of the District Court.




                                            4
