Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-20-2006
USA v. McElveen
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1240
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Recommended Citation
"USA v. McElveen" (2006). 2006 Decisions. Paper 726.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/726
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NOT PRECEDENTIAL
UNTIED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-1240
USA
v
CARL MCELVEEN, Appellant
Appeal from the Untied States District Court
for the Eastern District of Pennsylvania
District Court No: 03-cr-00542
District Judge: Honorable Mary A. McLaughlin
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 11, 2006
Before: Sloviter, McKee and Rendell, Circuit Judges
(Filed July 20, 2006 )
OPINION
McKEE, Circuit Judge
Carl McElveen appeals the district court’s judgment of sentence in which the court
sentenced him to 75 months of imprisonment following his guilty plea. The plea was
entered pursuant to a plea agreement in which McElveen waived his right to appeal
absent certain contingencies that are not present. For the reasons that follow, we will
affirm.
McElveen asks us to review the reasonableness of his sentence pursuant to United
States v. Booker, 543 U.S. 220 (2005). However, as noted, he entered into a plea
agreement in which he expressly waived all his rights to appeal or collaterally attack his
conviction, sentence, or any other matter relating to his prosecution, Supp. App. at 5.
Such waivers are valid and are strictly construed if entered into knowingly,
voluntarily and intelligently. United States v. Khattak, 273 F. 3d 557, 562-63 (3d. Cir.
2001). Nothing on this record suggests that McElveen’s plea agreement was not entered
into knowingly, voluntarily or intelligently. Thus absent a miscarriage of justice,
McElveen’s waiver effectively deprives us of jurisdiction to review the merits of his
appeal. Id. Here, there is not even a suggestion that enforcing the waiver would result in
any such miscarriage.
McElveen’s offense level under the Sentencing Guidelines was 23, and his
criminal history category was “V.” This resulted in a sentencing range of 84-105 months
of imprisonment as stated in the Presentence Investigation Report. App. 43. The court
imposed a sentence of 75 months incarceration, which fell below the applicable Guideline
range. There was no upward departure, and the sentence is clearly less than the statutory
maximum.
McElveen argues that Booker grants the right to appeal the reasonableness of his
sentence despite his waiver. However, an intervening court decision does not negate the
waiver in his plea agreement. United States v. Lockett, 406 F. 3d 207, 213 (3d Cir. 2005).
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We have held that, despite the sea change that followed in the wake of Booker, we will
enforce the terms of a valid waiver of the right to appeal from a sentence imposed
pursuant to a guilty plea. Id. At 213-14. Moreover, before sentencing, all parties and the
sentencing court recognized the impact of Booker, and understood that the Guidelines had
become advisory. App. 25.
Accordingly we will affirm the judgment of sentence.
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