Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-1-2006
USA v. Brown
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3472
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3472
____________
UNITED STATES OF AMERICA
v.
JASON BROWN,
a/k/a Jayson T. Browns,
a/k/a Jay Brown,
a/k/a James Brown,
a/k/a Jason Browne,
Jason Brown,
Appellant.
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 04-cr-00505)
District Judge: Honorable Gene E.K. Pratter
Submitted Under Third Circuit LAR 34.1(a)
September 26, 2006
Before: RENDELL, CHAGARES and ROTH, Circuit Judges.
______
(Filed: November 1, 2006)
____________
OPINION OF THE COURT
____________
CHAGARES, Circuit Judge.
Pursuant to a plea agreement, appellant Jason Brown pleaded guilty to seven
counts of bank fraud, in violation of 18 U.S.C. § 1344; thirty-nine counts of false use of a
Social Security number, in violation of 42 U.S.C. § 408(a)(7)(B); and one count of
identity theft, in violation of 18 U.S.C. §§ 1028(a)(3), (b)(2)(B), (c)(3)(A). The District
Court sentenced him to 90 months in federal prison, and this appeal followed. Brown
argues that the District Court erred in its calculation of the offense level under the
advisory Sentencing Guidelines and, in the alternative, he claims that the court’s upward
variance1 was unreasonable. Since we write only for the parties, we do not state the facts
separately. We will dismiss Brown’s appeal insofar as it challenges the District Court’s
calculation of his offense level, and we will affirm the District Court’s decision to impose
an upward variance.
I.
Brown claims that the District Court improperly calculated the loss amount under
U.S.S.G. § 2B1.1. As the Government points out, though, Brown’s plea agreement
contains an express waiver of his right to appeal the District Court’s sentence. The
agreement provides only three limited exceptions. First, “if the government appeals from
the sentence, then the defendant may file a direct appeal. . . .” Second, the defendant
1
This Court describes “post-[United States v. Booker, 543 U.S. 220 (2005),]
discretionary sentences not based on a specific Guidelines departure provision as
‘variances.’” United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006).
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“may file a direct appeal. . . claim[ing] that [his] sentence exceeds the statutory
maximum.” And third, he “may file a direct appeal. . . claim[ing] that. . . the sentencing
judge unreasonably departed upward from the otherwise applicable sentencing guideline
range.” Relying on this waiver, the Government asks us not to reach the merits of
Brown’s loss-calculation argument.
We review de novo the validity of a waiver-of-appeals provision in a plea
agreement. See United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001). If the
defendant agreed to the waiver knowingly and voluntarily, we will enforce it unless a
miscarriage of justice would result. See United States v. Lockett, 406 F.3d 207, 213 (3d
Cir. 2005). The waiver provision is subject to a rule of strict construction, but where it
applies the defendant has the burden of “‘show[ing] why we should not enforce’” it.
Khattak, 273 F.3d at 562-63 (quoting United States v. Rubio, 231 F.3d 709, 711 (10th
Cir. 2000)).
Brown’s loss-calculation argument does not fit within any of the exceptions
contained in the agreement. The waiver-of-appeals provision unambiguously states that,
outside of its exceptions, no other “issue may be presented by the defendant on appeal.”
Thus, even under our rule of strict construction, the waiver applies to this issue. See
Khattak, 273 F.3d at 562.
Brown does not allege that he entered into the waiver unknowingly or
involuntarily, nor does he contend that enforcing the provision would result in a
miscarriage of justice. Indeed, Brown’s attorney never even mentioned the plea
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agreement in his brief. The Government raised the issue of waiver, but Brown’s attorney
chose not to file a reply brief. Our own review of the record indicates that the District
Court conducted a thorough colloquy in accordance with Rule 11 of the Federal Rules of
Criminal Procedure. It determined that Brown had read the agreement, signed it, and
discussed its contents with his attorney. The court reviewed the terms of the waiver-of-
appeals provision, and Brown assented to them. It also explained that Brown could “get a
longer sentence than [he] may expect” and “that no one c[ould] guarantee. . . what
sentence” the District Court would impose. This colloquy indicates a knowing and
voluntary waiver of the right to appeal. As such, we will enforce the parties’ bargain and
dismiss the appeal to the extent that it challenges the District Court’s loss calculation.
II.
Brown also contends that the District Court’s 90-month sentence constituted an
unreasonable upward variance from the Guidelines range of 70 to 87 months. As the
Government concedes, the waiver-of-appeals provision in the parties’ plea agreement
does not cover this claim. A challenge to an upward variance falls within the agreement’s
exception for “claims that. . . the sentencing judge unreasonably departed upward from
the otherwise applicable sentencing guideline range.” We therefore proceed to the merits.
We review the District Court’s sentence for reasonableness. See United States v.
Booker, 543 U.S. 220, 260-61 (2005). A sentencing court acts reasonably when it
meaningfully considers and rationally applies the factors set forth at 18 U.S.C. § 3553(a).
See United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006); United States v.
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Cooper, 437 F.3d 324, 329-30 (3d Cir. 2006). “The advisory guidelines range is itself
one of the § 3553(a) factors, 18 U.S.C. § 3553(a)(4), and [it] play[s] an integral part in
sentencing decisions.” Cooper, 437 F.3d at 331. Nonetheless, “just as a sentence within
that range is not presumptively reasonable, a sentence outside of it is not presumptively
unreasonable.” Schweitzer, 454 F.3d at 204.
In the case before us, the District Court engaged in a thorough analysis of the
relevant factors. It then applied those factors in a detailed and thoughtful manner. Its
decision to impose a sentence three months above the advisory Guidelines range was
well-supported, logically explained, and eminently reasonable.
III.
For the foregoing reasons, we will dismiss the appeal in part, and affirm in part.
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