Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-26-2009
USA v. Howard
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4836
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-4836
____________
UNITED STATES OF AMERICA,
v.
ROBERT RAYMOND HOWARD, SR.,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cr-00138-1)
District Judge: Honorable Christopher C. Conner
____________
Submitted Under Third Circuit LAR 34.1(a)
March 3, 2009
Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
(Filed: March 26, 2009)
____________
OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Robert Howard appeals his judgment of sentence following his guilty plea.
Because Howard waived his appellate rights, we will dismiss his appeal.
Howard, a convicted felon, pleaded guilty to possessing a firearm in violation of
18 U.S.C. § 922(g)(1). Under the terms of his plea agreement, Howard waived the right
to appeal his sentence. He now challenges the reasonableness of his sentence, arguing
that his appellate waiver was not made knowingly and voluntarily.
“If done knowingly and voluntarily, a statutorily created right to appeal is
generally held to be waiveable.” United States v. Khattak, 273 F.3d 557, 561 (3d Cir.
2001). Federal Rule of Criminal Procedure 11(b)(1)(N) requires a court to “inform the
defendant of, and determine that the defendant understands . . . the terms of any plea-
agreement provision waiving the right to appeal or to collaterally attack the sentence”
before accepting a plea.
We have held that “the role of the sentencing judge is critical . . . [i]n determining
whether a waiver of appeal is ‘knowing and voluntary.’” Khattak, 273 F.3d at 563. In
United States v. Gwinnett, 483 F.3d 200, 204-05 (3d Cir. 2007), we found that the
defendant’s appellate waiver was knowing and voluntary where the sentencing judge: (1)
“referred to the waiver in the context of a discussion concerning the effect that United
States v. Booker might have on [the defendant’s] right to appeal her sentence,” and (2)
“referred to the ‘conditional waiver of appeal’ on several occasions during the sentencing
hearing.”
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Howard’s counsel argues that his client’s appellate waiver was not knowing and
voluntary because the “District Court made no . . . inquiry regarding defendant’s
understanding of the [waiver’s] significance.” Appellant’s Br. 6. This is false. The
record clearly shows that the District Court engaged Howard in a lengthy plea colloquy,
specifically informing Howard of his appellate rights and the consequences of waiver:
COURT: Mr. Howard, ordinarily you would have the right to bring later
proceedings such as a collateral attack with a habeas corpus motion
to vacate, set aside, or correct your sentence. Do you understand that
this plea agreement severely limits your right to appeal and prevents
you from using later proceedings like a collateral attack and a habeas
corpus petition to challenge your conviction, sentence, or any other
matter? Do you understand that?
HOWARD: Yes, I do.
COURT: I direct your attention specifically to paragraph 20 on pages 11 and
12 of the written plea agreement. Would you take a look at that for
me please?
COUNSEL: You’re waiving your right to complain that I’m a lousy lawyer. So if
I screw up, if I make a mistake, if I . . .
HOWARD: Can’t go back.
COUNSEL: You can’t go back.
COURT: All right. Specifically paragraph 20 states that the defendant is
aware that Title 18, Section 3742 of the United States Code affords
the defendant the right to appeal the conviction and sentence
imposed. However, acknowledging all of this, the defendant
knowingly waives the right to appeal any conviction and sentencing,
including a sentence imposed within the statutory maximum, on any
and all grounds set forth in that section or on any other grounds,
constitutional or nonconstitutional, including the manner in which
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the sentence was determined in light of recent Supreme Court
decisions.
This paragraph also states that the defendant waives his right to
challenge any conviction or sentence or the manner in which the
sentence was determined in any collateral proceeding, including, but
not limited to, a motion brought under Title 28, Section 2255, of the
United State Code, and finally this paragraph indicates that the
defendant further acknowledges that this appeal waiver is binding
only upon the defendant and that the United States retains its right to
appeal in this case.
So it’s a one-sided deal, and this appeal waiver is applicable only to
the defendant. Now, understanding all that, and you’ve reviewed
this with your attorney, is that correct?
HOWARD: Yes, sir.
COURT: Is it still your desire to plead guilty?
HOWARD: Yes.
App. 99-101.
Counsel’s representation notwithstanding, the thorough plea colloquy leaves no
doubt that Howard knowingly and voluntarily waived his right to appeal. Howard does
not argue (nor could he) that the terms of the waiver allow him to appeal the
reasonableness of his sentence, or that enforcement of the waiver would result in a
miscarriage of justice. See Khattak, 273 F.2d at 563. He merely argues that the District
Court failed to perform a necessary step that the record plainly shows was performed.
4
Because it was made knowingly and voluntarily, Howard is bound by the waiver of
his appellate rights and we need not address the reasonableness of his sentence. We will
therefore dismiss this appeal.
5