2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-23-2010

USA v. Nelson

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4721

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Recommended Citation

"USA v. Nelson" (2010). 2010 Decisions. Paper 1671.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1671
 Honorable Yvette Kane, Chief United States District Court Judge for the Middle *

District of Pennsylvania, sitting by designation.

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-4721

_____________

UNITED STATES OF AMERICA

 v.

SEAN NELSON,

 Appellant.

_____________

On Appeal from the United States District Court 

for the District of New Jersey

(D.C. No. 06-cr-520)

District Judge: Hon. Jerome B. Simandle

 

Submitted Under Third Circuit L.A.R. 34.1(a),

January 26, 2010

Before: FUENTES and FISHER, Circuit Judges

and KANE, District Judge. *

(Opinion Filed: March 23, 2010)

OPINION OF THE COURT
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has 1

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “A defendant’s valid

appellate waiver does not deprive this Court of jurisdiction over the defendant’s claims,

and we retain subject matter jurisdiction over the defendant’s appeal despite the waiver.” 

United States v. Jackson, 523 F.3d 234, 242 (3d Cir. 2008) (citation omitted). “We

examine the legality of waiver-of-appeals provisions de novo, as it is a question of law.” 

United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001) (citation omitted).

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FUENTES, Circuit Judge:

Appellant, Sean Nelson, pled guilty to conspiracy to distribute and to possess with

intent to distribute cocaine and cocaine base. In the written plea agreement, Nelson

waived his right to appeal if his sentence fell within a specified Guidelines range. At

sentencing, the District Court imposed a sentence within that range. Nelson appeals from

the District Court’s Judgment, arguing that his appellate waiver should not be enforced as

it would work a “miscarriage of justice.” In particular, Nelson contends that the

impeachment of a witness who testified on his behalf at sentencing was unforeseen and

that certain hearsay statements made by the Government exposed the District Court to

extremely prejudicial information, rendering his sentencing proceeding unfair. For the

reasons that follow, we will enforce Nelson’s waiver of his appellate rights, decline to

reach the merits of his appeal, and affirm the District Court’s Judgment.1

I.

Because we write primarily for the parties, we only discuss the facts and

proceedings to the extent necessary for the resolution of the case.
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Nelson pled guilty to conspiracy to distribute and to possess with intent to

distribute five kilograms or more of cocaine and fifty kilograms or more of cocaine base

(“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). In his plea

agreement, Nelson waived his right to appeal if his “sentence f[ell] within or below the

Guidelines range that results from a total Guidelines offense level of 29.” (App. 14.) At

the change of plea hearing, the District Court specifically questioned Nelson about the

appellate waiver contained in the plea agreement, and Nelson confirmed that he

understood the effect of the waiver. (Id. at 43–45.)

At the sentencing hearing, defense counsel noted that a number of Nelson’s family

members were present; the District Court asked if any of them would like to speak, and

defense counsel repeated the District Court’s question. (Id. at 61.) Vincent Perry,

Nelson’s stepfather, volunteered to speak and asked for leniency on Nelson’s behalf. 

Relevant to this appeal, in response to a question from the District Court, Perry stated that

he did not know that Nelson was “dealing in crack cocaine.” (Id. at 63.) Defense counsel

briefly alluded to Perry’s remarks in his closing statement.

After Nelson finished speaking, the Government asked for a conference at sidebar

and reported that Perry had been cooperating with the Government and that, contrary to

his testimony, he knew of Nelson’s involvement in drug trafficking. The Government

explained as follows:

Vincent Perry told the Court some things that we don’t believe to be

true when he told us that he didn’t know anything about Sean Nelson being
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involved in drugs, that is, he’s been cooperating with the government and he

has given explicit information about . . . Sean Nelson’s involvement in drug

trafficking over the years. Some of the information he’s given us included that

. . . Sean [was] involved in distributing crack since at least 2003. And he

talked very specifically about one incident where he drove Sean Nelson to

Felipe Telleria’s house, he described the house and described the car and it’s

an incident that happened in 2006 and that incident was captured on the

wiretap. Now, the agents did not see Vincent Perry on the surveillance from

the pole camera, but they did see the car he described during that transaction.

He said Sean Nelson bought nine ounces of cocaine from Felipe Telleria, and

that comports with several of the calls that we have on the wiretaps that were

going on that summer.

So as much as I didn’t want to bring this up, and I certainly don’t want

to make this a matter of public consumption because his cooperation has been

ongoing, although I’m not sure what the effect of this will be, it has to be

sorted out, he’s been a cooperator with the state, . . . we wouldn’t want it to

come out publicly, but I don’t want the record to stand now, as it was with the

Court, and the Court thinking that Mr. Perry was unaware of his stepson’s drug

trafficking.

(Id. at 80–81.)

The District Court asked the Government whether it “should ask [Perry] if he

wants to change any of his statements to me about his lack of knowledge, or does that just

dig things deeper?” (Id. at 81.) The Government replied that such a question “would dig

things deeper” because the courtroom was “full of drug dealers” and “it might be

dangerous” for Perry. (Id.) After further discussion with counsel, the District Court

stated that “I’m not going to hold it against Sean Nelson in any way, pretty much what

Mr. Perry has said.” (Id. at 82.) Defense counsel responded to the District Court’

statement, and the Court reiterated that it would not consider Perry’s statements in

sentencing Nelson:
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I think the important thing is that the defendant’s rights be preserved in all of

this and that I continue to believe that he should be sentenced for the

information that I have before me and nothing more, nothing less. . . . And that

means, I’ll be more explicit, that his stepfather, whether he had information

about the drug dealing or didn’t, adds nothing in that regard to what I’m

sentencing Mr. Nelson for and that is what he pled guilty to.

(Id. at 83.)

Nelson was subject to a statutory mandatory minimum sentence of 120 months’

imprisonment. The District Court concluded, however, that Nelson qualified for the

“safety valve” provision of 18 U.S.C. § 3553(f) and could be sentenced under the

mandatory minimum. With a total offense level of 27 and a criminal history category of

I, Nelson’s advisory Guidelines range was 70 to 87 months. The District Court imposed a

sentence of 78 months’ imprisonment.

On appeal, Nelson argues that this Court should not enforce his appellate waiver as

it would work a manifest injustice by preventing him from challenging the fairness of his

sentencing proceeding. He further argues that the District Court committed plain error in

failing to order the Government to turn over Perry’s prior inconsistent statements.

II.

“Waivers of appeals, if entered into knowingly and voluntarily, are valid, unless

they work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir.

2001). Nelson does not argue that his waiver was unknowing or involuntary, instead

asserting that its enforcement would result in a miscarriage of justice. Factors to consider

before “‘reliev[ing] the defendant of the waiver’” to prevent a miscarriage of justice
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include “‘the 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. (quoting United States v. Teeter, 257 F.3d

14, 25–26 (1st Cir. 2001)).

Nelson argues that the District Court was exposed to “extremely prejudicial

information,” specifically the Government’s hearsay statement that, according to Perry,

Nelson distributed crack cocaine since “at least 2003” when Nelson had only admitted to

a conspiracy from July 2004 to July 2006. (Nelson Br. 9–10.) The Government’s use of

hearsay to impeach Perry at sidebar does not constitute the type of “unusual circumstance

[of] an error amounting to a miscarriage of justice” contemplated by Khattak. Although

Perry’s testimony and the Government’s response at sidebar were unforeseen by the

parties, allowing Nelson’s sentence to stand unchallenged does not work a miscarriage of

justice, particularly in light of the District Court’s statement that it would not consider

Perry’s statement regarding his lack of knowledge of Nelson’s drug trafficking nor the

Government’s impeachment evidence in arriving at Nelson’s sentence. Accordingly, we

conclude that Nelson waived his right to the present appeal, and we do not reach the

merits of his remaining claim.

III.

For the foregoing reasons, we affirm the District Court’s Judgment.