Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-25-2009
USA v. Fekos
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3734
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"USA v. Fekos" (2009). 2009 Decisions. Paper 1695.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 07-3734 & 07-3735
UNITED STATES OF AMERICA
v.
CHRISTOPHER FEKOS,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Nos. 2-06-cr-00237-001 and 2-07-cr-00116-001)
District Judge: Honorable Kim R. Gibson
Submitted Under Third Circuit LAR 34.1(a)
March 24, 2009
Before: RENDELL, AMBRO, and JORDAN, Circuit Judges.
(Filed: March 25, 2009)
OPINION OF THE COURT
JORDAN, Circuit Judge.
Pursuant to a plea agreement, Christopher Fekos pled guilty to bank fraud, in
violation of 18 U.S.C. § 1344, money laundering, in violation of 18 U.S.C. § 1957(a), and
mail fraud, in violation of 18 U.S.C. § 1341. He appeals his judgment of sentence,
arguing that the trial court erred in its calculation of the guidelines range under the United
States Sentencing Guidelines and in its holding that he waived his right to appeal an
incorrect sentencing determination of his guidelines range. Because Fekos knowingly
and voluntarily waived his appellate rights in his plea agreement, we will affirm.1
I. Background
For years, Fekos, a restauranteur and owner of a painting business, engaged in a
pattern of criminal activity that included defrauding individuals and financial institutions
through fraudulently obtained loans. Fekos’s principal method of securing the loans was
to make “misrepresentations and [submit] false documents that overstated assets and
income and understated liabilities ... .” (Presentencing Report, at ¶. 14) Fekos repeatedly
mortgaged his properties, and, when a lien on the property was discovered, he falsified
documents that were purportedly sent from the lienholder bank claiming that there was no
lien. Based on the fraudulent letters, several lenders approved loans to Fekos. In addition
to defrauding lending institutions, Fekos defrauded several personal investors. He
promised a percentage of profits from various fictitious businesses that he purported to
own, in return for the investors’ acquisition of mortgages and loans for Fekos’s benefit.
To induce the investments, Fekos again provided false earnings documents, tax filings,
and other misrepresentations regarding his ownership of certain restaurants and
businesses. While on bond for the first indictment, Fekos was indicted a second time for
mail fraud.
1
We affirm the Amended Judgment of Conviction and Sentence entered by the District
Court on September 26, 2007.
2
As noted, Fekos pled guilty to bank fraud and mail fraud. As part of the plea
agreement, and with limited exceptions, he waived his right to take a direct appeal from
his conviction and sentence. In particular, the plea agreement provided in paragraph 5:
Christopher Fekos waives the right to take a direct appeal from his
conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject
to the following exceptions:
(a) If the United States appeals from the sentence, Fekos may
take a direct appeal 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, Christopher Fekos
may take a direct appeal from the sentence.
Christopher Fekos further waives the right to file a motion to vacate
sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and
the right to file any other collateral proceeding attacking his conviction or
sentence.
(App. at 63-64.)
In Fekos’s Presentencing Report, the Probation Office calculated his offense level
as thirty-two, and his criminal history category as one, resulting in a sentencing range of
121 to 151 months imprisonment. The government filed two objections to the Probation
Office’s guidelines calculation. First, it argued that the Probation Office failed to apply
the money laundering enhancement, and, second, it argued that the Probation Office
failed to apply the enhancement for committing an offense while on bond. The District
Court sustained the government’s objections and increased the offense level to thirty-six,
which included a one point increase for the money laundering enhancement and a three
3
point increase for committing an offense while on bond.
II. Discussion
The District Court had jurisdiction under 18 U.S.C. § 3231. On appeal, we have
subject matter jurisdiction pursuant to 28 U.S.C. § 1291, but we decline to exercise it to
review the merits because the “criminal defendant has effectively waived his appellate
rights in an enforceable plea agreement.” United States v. Gwinnett, 483 F.3d 200, 203
(3d Cir. 2007).
A waiver of a right to appeal is enforced if it is entered into knowingly and
voluntarily and does not result in a miscarriage of justice. United States v. Khattak, 273
F.3d 557, 558 (3d Cir. 2001). “We strictly construe the language of the waiver, but if we
find the waiver applies by its terms, it is the defendant’s burden to show the waiver
should not be enforced.” Id. If the defendant fails to meet his burden, the Sentencing
Order will be affirmed without review of the merits. Id. Waivers of appellate rights are
reviewed de novo. Khattak, 273 F.3d at 560.
Fekos argues that he did not waive his right to appeal an incorrect determination of
his guidelines range. However, his plea agreement contained an appellate waiver in
which he agreed to waive the right to take direct appeal of his conviction or sentence,
unless (1) the government appealed the sentence, (2) the sentence exceeded the statutory
limit set forth in the U.S. Code, or (3) the sentence unreasonably exceeded the guidelines
range. None of these exceptions applies.
At the plea colloquy, Fekos was represented by counsel, and he was thoroughly
4
questioned by the Judge to ensure that he understood the plea agreement and that he was
waiving his right to appeal. Fekos testified that he had read and discussed the Plea
Agreement with his counsel and that he understood it. The Assistant United States
Attorney then read the plea agreement in open court and Fekos again acknowledged that
he understood its contents and that he was waiving the right to take a direct appeal of his
conviction or sentence. The Judge advised Fekos that the sentence could be more or less
than the guidelines range, depending on the pre-sentencing report. The Judge again asked
Fekos if he understood the terms of the agreement and waiver, and explained that even if
the sentence was more severe than expected, Fekos would have no right to withdraw his
guilty plea. Fekos responded in the affirmative and the Judge confirmed that Fekos
entered into the plea agreement knowingly, voluntarily and intelligently. Fekos’s waiver
was valid.
Where a waiver is valid the court can only reach the merits of the defendant’s
sentencing argument if the waiver would result in a miscarriage of justice. Khattak, 273
F.3d at 562. Fekos argues that enforcing the waiver is a miscarriage of justice because
the court erred in calculating the sentencing enhancements and therefore “the Court’s
error resulted in a substantially harsher sentence than Appellant should have received.”
(Appellant Br. at 17.) That argument has no merit; indeed, it would result in an exception
undermining the entire agreement. If any dispute over the applicability of enhancements
could void the waiver, the careful language of the contract, with its limited exceptions,
would have little meaning. The District Court put Fekos on notice that his sentence could
5
be more severe than he expected when he pled guilty and told him that he was waiving
his right to appeal such a sentence. The guidelines range for offense level thirty-six is
188 to 235 months and Fekos received a 200-month sentence. The sentence he received
was not outside the guidelines range selected by the District Court and it was not a
miscarriage of justice.2
III. Conclusion
Because Fekos effectively waived his right to appeal, we will affirm the sentence.3
2
We note that there is a 37 month difference between the 151 month high-end of the
guidelines range at level 32, the offense level calculated by the Probation Office, and the
188 month low-end at level 36, the offense level applied by the District Court. However,
even if that difference could be said to result in a “substantially harsher sentence,” that is
of no consequence to the waiver because the plea agreement says that the “guideline
range determined by the Court” is the operative range. (App. at 63.)
3
Although we conclude that the defendant effectively waived his right to appeal, in
light of the amendment to the Third Circuit Local Appellate Rule 27.4 and Third Circuit
Internal Operating Procedure 10.6, we reiterate that in the future the government should
seek enforcement of such a waiver before there has been briefing on the merits.
6