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 N ew 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]
Offi ce 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 M arket Street Camden, NJ 08101 Counsel for Appellee

__________

OPINION

__________

NYGAARD, Circuit Judge

.

Richard Banks appeals the sentence that resulted from
viola ting 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 Distri ct Court’s decision to
sentence him to a consecutive term of imprisonment for the supervised release violation

. We will affirm

.3 During Banks’ supervised re lease in 2011 for a bank
fraud conviction , police arrested him for conspiring to steal or

create more than 75 f

raudulent checks in the attempt ed theft
of more than $130,000. P ursuant to a plea agre ement , h e pleaded guilty to one count of conspiracy to commit bank fraud (18 U.S.C. §1349) , and to violating the conditions of his supervised r elease. He stipulated that he committed a Grade
A violation of his supervised release , and that his total
Guidel ines offense level was 14 with a Criminal History Category of VI. T he plea agreement contained the following language: The sentence to be imposed upon

Richard Bank s is within the s o le discretion of the sentencing judge, subject to the provisions of the
Se ntencing 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 an d including the statutory maximum term of imprisonment an d 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 an y 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, Sect ion 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 result s from the agreed tota l Guidelines
offense level of 1 4 and the
sentence for the Violation Petition
falls within or below the
Guid e line range set forth in Paragraphs 10 and 11 above.

Plea Agreement, Schedule A

, Para graph 12.5 Between the time of his arrest and guilty plea, Banks cooperated with the Gover nment quite substantially, resulting
in a number of convictions. At sentencing, a fter granting a 6

- level downward departure for t his cooperation , the District
Court imposed a prison term of 18 months for the bank
fraud

. 1 It den i ed his request s for the sa me downward departure , and for a concurrent term of imprisonment

, on the supervised release violation . T he District Court ordered 33
months ’ imprisonment for the violation, to be served consecutively

. 2 Banks now argu es that his consecutive
sentence is no t 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 exerci se juris diction 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 Stat es v. Saferstein, 673 F.3d 237, 242 (3d Cir. 2012)( internal quotation marks omitted) ). Banks concedes tha t 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). T he 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 , 27 3 F.3 d 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). H ere , we find no basis for Banks to claim
that either party intended to except con secutive sente nc ing
from his broadly inclusive waiver of “any appea l . . . which challenges the sentence imposed. ” Plea Agreement, Schedule A, Par. 12

. To the con trary, Section B of the plea agreement explicitly anticipated that the District Court could impose a

con secutive sentence

. Mo reover, U.S.S.G. § 7B1.3(f)

convey s a strong preference for a consecutive sentence in precisely the scenario encounter ed he re

. Finally, w e must

construe the phrase “any appeal

. . . which challenges the sentence imposed ” to mean what it plainly states

. See Castro

, 704 F.3d at 137

. S ince consecutive sentencing is not explicitly e xcepted 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.

Bank s next argues that the language of the plea agreement is ambiguous, focusing upon t he following statement: “The sentencing judge may order that any sentences imposed . . . be served conse cutively.” Plea Agreement § B (emphasis added). He as serts that this language is vague and susceptible to multiple meanings
because the government ne ver specifically express ed 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 federal7 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

an y such ambiguity exists. The word “may” accurately described the reality facing Banks: the District Court had
di scretion to impose consecutive sentences and the government lack ed 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 possi bility that the Distri ct Court w o uld 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. Kha ttak , 27 3 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

statut ory 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 acquiesce d 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 that8 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 en tire term of 51 months’ imprisonment was well below the statutory maximum of 30 years for the bank fraud offense

. 18 U.S.C. §
13 44. T here is no found ation to conclude that the District
Court’s sentence constitute d a miscarriage of justice here

.

For a ll of these reasons, we will enforce the waiver and
affirm the sentence imposed by the District Court

.