PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 13-2094

__________

UNITED STATES OF AMERICA

v.

RICHARD BANKS,

 Appellant

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-06-cr-00829-001)

District Judge: Honorable Joseph H. Rodriguez

ARGUED NOVEMBER 12, 2013

BEFORE: HARDIMAN, SCIRICA, and NYGAARD, 

Circuit Judges

(Filed: February 12, 2013)
2

Lori M. Koch, Esq.

Julie A. McGrain, Esq. [Argued]

Office of the Federal Public Defender

800-840 Cooper Street, Suite 350

Camden, NJ 08102

Counsel for Appellant

Mark E. Coyne, Esq.

Office of the United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Glenn J. Moramarco, Esq. [Argued]

Office of the United States Attorney

Camden Federal Building and Courthouse

401 Market Street

Camden, NJ 08101

Counsel for Appellee

__________

OPINION

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NYGAARD, Circuit Judge.

Richard Banks appeals the sentence that resulted from

violating the terms of his supervised release by committing 

bank fraud. He asserts that the appellate waiver in his plea 

agreement does not apply to the District Court’s decision to 

sentence him to a consecutive term of imprisonment for the 

supervised release violation. We will affirm. 
3

During Banks’ supervised release in 2011 for a bank 

fraud conviction, police arrested him for conspiring to steal or 

create more than 75 fraudulent checks in the attempted theft 

of more than $130,000. Pursuant to a plea agreement, he 

pleaded guilty to one count of conspiracy to commit bank 

fraud (18 U.S.C. §1349), and to violating the conditions of his 

supervised release. He stipulated that he committed a Grade 

A violation of his supervised release, and that his total 

Guidelines offense level was 14 with a Criminal History 

Category of VI. The plea agreement contained the following 

language:

The sentence to be imposed upon 

Richard Banks is within the sole 

discretion of the sentencing judge, 

subject to the provisions of the 

Sentencing Reform Act, 18 

U.S.C. § 3551-3742, and the 

sentencing judge’s consideration 

of the United States Sentencing 

Guidelines. . . . The sentencing 

judge may impose any reasonable 

sentence up to and including the 

statutory maximum term of 

imprisonment and the maximum 

statutory fine. This office cannot 

and does not make any 

representation or promise as to 

what guideline range may be 

found by the sentencing judge, or 

as to what sentence Richard 

Banks ultimately will receive. 

Plea Agreement § A. It also stated:
4

The sentencing judge may order 

that any sentences imposed by the 

sentencing judge on the violation 

of 18 U.S.C. § 1349, as described 

in the Information, and the 

violation of supervised release as 

charged in Violation #1 to the 

Violation Petition, be served 

consecutively to each other or to 

any other sentence Richard Banks 

may be serving at the time the 

sentences are imposed pursuant to 

18 U.S.C. § 3584 and U.S.S.G. § 

7B1.3(f).

Plea Agreement, Section B. Finally, it declared:

Richard Banks knows that he has, 

and voluntarily waives, the right 

to file any appeal . . . which 

challenges the sentence imposed 

by the sentencing court if that 

sentence falls within or below the 

Guidelines range that results from 

the agreed total Guidelines 

offense level of 14 and the 

sentence for the Violation Petition 

falls within or below the 

Guideline range set forth in 

Paragraphs 10 and 11 above.

Plea Agreement, Schedule A, Paragraph 12. 
5

Between the time of his arrest and guilty plea, Banks 

cooperated with the Government quite substantially, resulting 

in a number of convictions. At sentencing, after granting a 6-

level downward departure for this cooperation, the District 

Court imposed a prison term of 18 months for the bank 

fraud.

1

 It denied his requests for the same downward 

departure, and for a concurrent term of imprisonment, on the 

supervised release violation. The District Court ordered 33 

months’ imprisonment for the violation, to be served 

consecutively.

2 Banks now argues that his consecutive 

sentence is not encompassed in the waiver of his appellate 

rights. 

We exercise plenary review to determine whether 

Banks’ issue falls within the scope of his appellate wavier. 

United States v. Castro, 704 F.3d 125, 135 (3d Cir. 2013). 

“We decline to exercise jurisdiction over the appeal where [1] 

the issues on appeal fall within the scope of the waiver and 

[2] the defendant knowingly and voluntarily agreed to the 

waiver, unless [3] enforcing the waiver would work a 

miscarriage of justice.” Id. (quoting United States v. 

Saferstein, 673 F.3d 237, 242 (3d Cir. 2012)(internal 

quotation marks omitted)). Banks concedes that he 

knowingly and voluntarily consented to the waiver.

 

1

The adjusted offense level was 8, with a Guidelines range 

of 18 to 24 months.

2

The Guidelines range was 33 to 41 months. U.S.S.G. § 

7B1.4(a). The statutory maximum term, however, was 36 

months. 18 U.S.C. § 3583(e)). 
6

We construe the language of an appellate waiver 

strictly. United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 

2001). “[W]e will review the merits of an appeal if the 

waiver expressly provides specific exceptions under which an 

appeal may be taken, provided the appeal implicates one of 

those exceptions.” United States v. Jackson, 523 F.3d 234,

242 (3d Cir. 2008). Here, we find no basis for Banks to claim 

that either party intended to except consecutive sentencing

from his broadly inclusive waiver of “any appeal . . . which 

challenges the sentence imposed.” Plea Agreement, Schedule 

A, Par. 12. To the contrary, Section B of the plea agreement 

explicitly anticipated that the District Court could impose a 

consecutive sentence. Moreover, U.S.S.G. § 7B1.3(f) 

conveys a strong preference for a consecutive sentence in 

precisely the scenario encountered here. Finally, we must

construe the phrase “any appeal . . . which challenges the 

sentence imposed” to mean what it plainly states. See Castro, 

704 F.3d at 137. Since consecutive sentencing is not 

explicitly excepted from the appellate waiver in this

agreement, we conclude that the waiver covers the District 

Court’s imposition of a consecutive term of 33 months’ 

imprisonment for the supervised release violation. 

Banks next argues that the language of the plea 

agreement is ambiguous, focusing upon the following 

statement: “The sentencing judge may order that any 

sentences imposed . . . be served consecutively.” Plea 

Agreement § B (emphasis added). He asserts that this 

language is vague and susceptible to multiple meanings 

because the government never specifically expressed its intent 

to ask for a consecutive sentence. Such a declaration was 

necessary in this case, he contends, because the plea 

agreement memorialized negotiations involving two federal 
7

offenses. He insists that, as a result of the lacuna created by 

the ambiguous language, he was not sufficiently on notice to 

seek an exception to his appellate waiver. We disagree that 

any such ambiguity exists. The word “may” accurately 

described the reality facing Banks: the District Court had 

discretion to impose consecutive sentences and the 

government lacked authority to dictate how it would rule. 

The fact that the agreement encompassed both the bank fraud 

and supervised release offenses did not obscure the distinct 

possibility that the District Court would impose a consecutive

sentence. This did not disadvantage Banks in negotiating his 

plea agreement. 

Finally, we understand Banks’ unreasonableness 

argument to assert that imposition of this sentence would be a 

miscarriage of justice. Khattak, 273 F.3d at 562. We have 

noted that, to set aside an otherwise valid waiver, certain 

factors should be considered: 

[T]he clarity of the error, its 

gravity, its character (e.g., 

whether it concerns a fact issue, a 

sentencing guideline, or a 

statutory maximum), the impact 

of the error on the defendant, the 

impact of correcting the error on 

the government, and the extent to 

which the defendant acquiesced in 

the result.

Id.13- at 563 (quoting United States v. Teeter, 257 F.3d 14, 

26 (1st Cir. 2001)). In this instance, Banks claims only that
8

the consecutive sentence is an excessive punishment for 

violating the court’s trust. Yet, both of the prison terms

imposed by the District Court were within the ranges 

specified in the plea agreement, and the entire term of 51 

months’ imprisonment was well below the statutory 

maximum of 30 years for the bank fraud offense. 18 U.S.C. § 

1344. There is no foundation to conclude that the District 

Court’s sentence constituted a miscarriage of justice here. 

For all of these reasons, we will enforce the waiver and 

affirm the sentence imposed by the District Court.