Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-29-2009
USA v. Whitner
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4785
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4785
UNITED STATES OF AMERICA
v.
REGIE EDWARD WHITNER,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 07-cr-00190)
District Judge: The Honorable Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2009
Before: SLOVITER, BARRY, and SILER, JR.,* Circuit Judges
(Opinion Filed: January 29, 2009)
OPINION
*
The Honorable Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
BARRY, Circuit Judge
Regie Whitner appeals his sentence of 235 months’ imprisonment for conspiring to
distribute and possess with intent to distribute five kilograms or more of cocaine in
violation of 21 U.S.C. § 846. Whitner argues that his sentence is unreasonable because
the District Court mechanically applied the guideline range calculated in his Presentence
Investigative Report (“PSR”) without due consideration of the other sentencing factors
outlined in 18 U.S.C. § 3553(a).
The government contends that Whitner’s argument must fail because (1) the
within-guidelines sentence was reasonable, and (2) Whitner waived his right to appeal his
sentence in his plea agreement subject to several inapplicable exceptions. Relying on the
latter contention, we will affirm.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). However, “we
will not exercise that jurisdiction to review the merits of [a defendant’s] appeal if we
conclude that []he knowingly and voluntarily waived h[is] right to appeal unless the result
would work a miscarriage of justice.” Id.
Whitner does not reference his waiver of appeal in his appellate brief. It is,
however, contained in the plea agreement, which is included in the Supplemental
Appendix submitted by the government. (S.A. 26-30.) Section A.5 of the plea agreement
states:
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Regie Edward Whitner waives the right to take a direct appeal from his
conviction or sentence . . . subject to the following exceptions:
(a) If the United States appeals 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 . . . .
(S.A. 27.) None of the exceptions apply here: the government has not appealed,
Whitner’s sentence does not exceed the statutory maximum of life, and the sentence
imposed falls within the guideline range of 235-293 months determined by the District
Court.1
As noted above, we must ensure that Whitner entered into the waiver knowingly
and voluntarily, and that enforcement of the waiver would not work a miscarriage of
justice. Gwinnett, 483 F.3d at 203; United States v. Khattak, 273 F.3d 557, 562-63 (3d
Cir. 2001). At the change of plea hearing, Whitner appeared in open court, heard a
recitation of the content and scope of his plea agreement, including the appellate waiver
(S.A. 12), and acknowledged that it accurately described the agreement he had reached
with the government (S.A. 14). The District Court then specifically asked Whitner
1
We note that the District Court applied a downward departure of one criminal
history category pursuant to U.S.S.G. § 4A1.3(b)(1) based on its conclusion that the
recommended criminal history category of VI overstated the seriousness of two of
Whitner’s prior convictions for relatively minor drug offenses. (See A. 7, 10, 33.) This
reduced the guideline range from 262-327 months, as recommended in the PSR, to 235-
293 months. Whitner argues that, even with this reduction, the guideline range overstated
his criminal history.
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whether he understood that he was waiving his right to appeal subject to the exceptions
stated above. (S.A. 16.) Whitner responded affirmatively. (S.A. 16-17.) The District
Court thereafter accepted the plea, finding that it was “knowing and voluntary.” (S.A. 23.)
In light of the foregoing, and Whitner not contending that his waiver was
otherwise unenforceable, we will affirm the judgment of the District Court.
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