Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-29-2007
USA v. Ballard
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2029
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Ballard" (2007). 2007 Decisions. Paper 526.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/526
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 2007 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NOT PRECEDENTIAL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. 06-2029
UNITED STATES OF AMERICA
v.
RICHARD BALLARD,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 03-cr-0810
(Honorable Jan E. DuBois)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2007
Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN * , Circuit Judges.
(Filed: August 29, 2007)
OPINION OF THE COURT
*
The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.
Richard Ballard appeals his sentence of 180 months’ imprisonment for possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c) and
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
I.
After being indicted by a grand jury on a six count indictment, Ballard pled guilty
to three of the counts: possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(c) (Count I); possession of a firearm and ammunition after
having been convicted in state court of a crime punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count IV); and
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (Count VI). The District Court held a plea hearing and accepted
Ballard’s guilty plea to those counts. During the plea hearing Ballard stated he had read,
discussed with his lawyer, and signed the plea agreement and understood that the
preliminary sentencing guideline range was 262–327 months. (App. 52). The sentencing
agreement provided a waiver of appeals, with two exceptions. Ballard could appeal if the
sentence imposed exceeded the statutory maximum, or the sentence imposed was an
erroneous upward departure from the guidelines. (App. 104). Ballard stated that he
understood that his right to appeal was limited to these two claims. (App. 105).
2
Prior to sentencing, Ballard withdrew his plea and filed a motion challenging the
settlement. The District Court granted Ballard’s motion regarding Count VI, finding he
had not understand the nature of that charge. The District Court held Ballard’s former
counsel was not ineffective in advising him to plead guilty and Ballard had knowingly
and voluntarily pled guilty to the other Counts. (App. 61). The District Court sentenced
Ballard to 180 months’ imprisonment for Count I and 180 months’ imprisonment for
Count IV, to run concurrently. Ballard timely appeals.
II.
We retain jurisdiction over an appeal where a defendant has signed an appellate
waiver agreement. United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). But we
will not exercise our jurisdiction if we conclude that a defendant knowingly and
voluntarily waived his right to appeal, unless the result would work a miscarriage of
justice. Id; United States v. Shedrik, 2007 WL 2051032 at *4 (3d Cir. 2007) (“In short,
we have jurisdiction over this case, but will generally not exercise it absent compelling
reasons.”).1 Ballard contends his plea was not knowing or voluntary and enforcement of
the waiver would work a “miscarriage of justice” because the plea agreement was based
on a coerced plea that the District Court should have permitted him to withdraw. But
Ballard fails to prove that he did not knowingly and voluntarily enter into the plea
1
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
agreement. Ballard and his counsel signed the plea agreement. The appellate waiver was
explained to defendant during the plea hearing. Ballard argues the waiver should not be
enforced due to ineffective assistance of counsel. As noted, the District Court held there
was no ineffective assistance of counsel. (App. 61). We only consider the waiver in
relation to Ballard’s direct appeal. Generally, we only consider ineffective assistance of
counsel claims on collateral review. We see no reason to deviate from our general
practice here. Accordingly, Ballard may raise an ineffective assistance of counsel claim
on collateral review.
Ballard contends his claims fall within the only two exceptions outlined in the
waiver. These exceptions allow Ballard to appeal only if his sentence “exceeds the
statutory maximum” or the District Court “erroneously departed upward from the
otherwise applicable sentencing range.” Ballard maintains his sentence is illegal because
the District Court sentenced him above the statutory maximum for Count IV. Under
Count IV, Ballard was charged with violating §§ 921(g)(1) and 924(e). Both the written
guilty plea and the transcript of the guilty plea hearing confirm these charges. Because of
Ballard’s prior convictions, the minimum sentence for Count IV was 180 months’
imprisonment. 18 U.S.C. § 924(e). Ballard was sentenced to 180 months, the statutory
minimum.
Ballard further contends the District Court erroneously departed upward from the
otherwise applicable sentencing guideline range for Count I. The applicable statutory
4
maximum sentence for Count I is 30 years. 21 U.S.C. § 841(a)(1). Under the guidelines,
the District Court calculated Ballard’s applicable guideline range as 188–235 months.
(App. 415, 429). Ballard’s sentence of 180 months on Count I was below the applicable
guideline range.
III.
For the foregoing reasons, Ballard’s waiver agreement applies and we will affirm
the judgment of conviction and sentence.
5