NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 1 5

- 15 58

______________ UNITED STATES OF AMERICA

v. STUART CHAMBERS

Appellant

______________ APPEAL FROM THE UNITED STATES DISTRICT CO URT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 2

- 1 0

- cr - 00 774

- 001 ) District Judge: Hon. Paul S. Diamond

______________ Submitted Under Third Circuit L

. A

. R

. 34.1(a)

March 23 , 201 6

______________ Before: GREENAWAY , JR. , SHWARTZ , and RENDELL , Circuit Jud ges . (Filed: April 4, 2016 )

______________ OPINION *

______________ SHWARTZ, Circuit Judge

.

* This disposition is not an opinion of the full Court and, pursuant to I.O .P. 5.7, does not constitute binding precedent.2

Stuart Chambers seeks review of his sentence for conspiracy and bank fraud, arguing that the District Court erroneously denied him a reduction f or acceptance of responsibility under U.S.S.G. § 3E1.1 because , when combined with an unchallenged enhancement for obstruction of justice under § 3C1.1 , he received an improper “ double penalty .” Appellant’s Br. 13. Chambers, however, knowingly and voluntarily waived his appellate rights, and for the reasons that follow, we will affirm.
I While on supervised release for a 2002 drug conviction , Chambers participated in

a scheme to pass fraudulent checks at local banks. As a result, i n 2010, Chambers was charged with c onspiracy to commit bank fraud and three counts of bank fraud (collectively “ the 2010 bank fraud charges ” )

. In addition, Chambers was charged with having violated the conditions of supervised release imposed in connection with his 2002 conviction. Chamb ers agreed to plead guilty to the 2010 bank fraud charges in exchange for certain benefits, including the Government’s recommendation that he be granted a reduction for acceptance of responsibility under § 3E1.1. Chambers also agreed to

“ voluntarily and e xpressly waive[] all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter relating to this prosecution,” unless the Government appealed the sentence, the sentence exceeded the statutory maximum for any
count, or the sente ncing judge “erroneously departed upward” under the Guidelines or “imposed an unreasonable sentence above the final Sentencing Guideline range3

determined by the Court.” 1 Supp l

. App. 17

- 18. During his 2011 plea hearing, t he
Government described the waiver when summarizing the plea a greement, and the District Court twice asked Chambers if he understood this waiver and he indicated that he did

. T he District Court found that Chambers understood all of his rights, including his appellate rights , and knowingly and voluntarily waived them , and accepted the guilty plea

. Chambers failed to appear at his sentencing and fled to New York

. While in New York, Chambers was arrested for cocaine possession , convicted, and sentenced to two years’ imprisonment. After c ompleting his New York prison term, he was returned to federal custody to face sentencing on the 2010 bank fraud and supervised release charges.
T he District Court held a sentencing hearing on both the 2010 bank fraud charges and the supervised release vi olation

. T he District Court first sentenced him to twenty

four months’ imprisonment on the violat ion of supervised release, without objection

. Turning to the bank fraud charges, the District Court considered the sole contested issue, namely whether Chamb ers was entitled to a reduction for acceptance of responsibility. The District Court overruled Chambers’s objection, holding that his was not “the kind of extraordinary case” in which both obstruction of justice and acceptance of responsibility applied. App. 31. Finding Chambers to be a “one

- man crime wave,” the District Court
sentenced him to , among other things, the statutory maximum of sixty months’ imprisonment on the bank fraud conspiracy charge , to be served concurrently with a top

1 In the Acknowledgment of Rights form submitted in connection with his guilty plea, Chambers also indicated he understood that he waived his right to appeal.4

of the Guideline s range sentence of seventy

- one months’ imprisonment on the remaining bank fraud charges

. App. 41

. The District C ourt further ordered that the sentence on the
2010 bank fraud charges would be served consecutively to the twenty

- four month sentence imposed for the violation of supervised release

. After announcing its sentence, the District Court explicitly reminded Chambers of his right to appeal, but noted that it “may be affected by the terms of [his] plea agreement.” App. 49. Chambers appeal s . II 2
Ch ambers appeals only the District Court’s denial of a reduction for acceptance of responsibility. However , because Chambers waived his right to appeal the Guideline s sentence imposed by the District Court, we need not reach this issue

. We will enforce an appellate waiver if we conclude that (1) the issue raised on appeal is within the scope of the waiver; (2) the waiver was knowing and voluntary; and (3) enforcing the waiver would not work a miscarriage of justice

. See United States v. Grimes , 739 F.3d 1 25, 128

- 29 (3d Cir. 2014) ; United States v. Castro , 704 F.3d 125, 136 (3d Cir. 2013) (courts should decline enforcement due to a miscarriage of justice “sparingly and without undue generosity ” (quotation marks and citation omitted) ). 3 We will consider eac h factor in turn. There is no dispute that Chambers’s arguments on appeal are within the scope of the appellate waiver and do not fall within its exceptions. The appellate waiver here

2 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291.

3 The validity and scope of an appellate waiver is reviewed de novo. See United States v. Wilson , 707 F.3d 412, 414 (3d Cir. 2013).5

contains limited exceptions under which Chambers may file an appeal, n amely when the Government appeals, or when the court imposes a sentence above the statutory maximum, erroneously upwardly departs , or imposes an unreasonable sentence above the final Guideline s range. None of the excep tions are present in this case. Sinc e the Guideline s issue here does not fall within the categories excluded from the waiver, it falls within its scope

. T he record also shows Chambers knowingly and voluntarily waived his appellate rights. To hold that an appellate waiver was “knowing” an d “voluntary,” this Court must be “satisfied that the district court ‘inform[ed] the defendant of, and determine[d] that the defendant underst[ood] . . . the terms of any plea

- agreement provision waiving the right to appeal or to collaterally attack the se ntence

. ’” United States v. M abry , 536 F.3d 231, 239 (3d Cir. 2008) (alterations in original) (quoting Fed. R. Crim. P. 11(b)(1)(N))

. T he written plea agreement, acknowledgment of rights, and hearing transcript all show Chambers was on notice of the waive r. Furthermore, t he plea hearing transcript “countermands any suggestion that the waiver was not ” knowingly entered. Id. at 2 38.
T he District Court engaged in a thorough and detailed plea colloquy with Chambers before accepting the guilty plea, which in cluded an oral recitation and explanation of the waiver, and specific question s about whether Chambers and his counsel reviewed the agreement and whether Chambers fully understood the nature of the appellate rights being waived. Chambers told the District Court he understood the waiver and the District Court found he understood his rights. Accordingly, we conclude that the waiver was knowing and voluntary.6

Finally, e nforcing Chambers’s appellate waiver would not result in a miscarriage of justice. In de termining whether the enforcement of a waiver works a mis carriage of justice, we assess the clarity of any error, its gravity and character, the impact of the error on the defendant, the impact of correcting the error, and the defendant ’s acquiescence in
t he result

. See id. at 242

- 43 (citing United States v. Teeter , 257 F.3d 14, 25

- 26 (1st Cir. 2001))

. We discern no error in the District Court’s application of the Sentencing Guidelines, let alone the kind of error that amounts to a miscarriage of justic e. Even if the District Court committed an error, c laims relating to Sentencing G uideline calculations are exactly the type of arguments to which a broad appellate waiver applies

. See Castro , 704 F.3d at 141

- 42 ( “[A] district court’s arguably erroneous c alculation of a guidelines r ange ‘is precisely the kind of “garden variety” claim of error contemplated by an appellate waiver.’” ( citations and alterations omitted ) ) ; see also United States v. Price , 558 F.3d 270, 284 (3d Cir. 2009) (written waiver pre clu ded challenge to the Government’s refusal to request a reduction for acceptance of responsibility). Chambers raises only this type of claim, disagreeing with the District Court’s decision not to grant him a reduction under § 3E1.1 because he contends it r esulted in double punishment

. Under our caselaw, it is the type of issue to which the waiver applies. Moreover, his
contention about double punishment has been specifically rejected b y the Sentencing7

Guidelines. 4 See U.S.S.G. § 3E1.1 cmt. n.4. Therefor e, enforcing the waiver here is not a miscarriage of justice. Because Chambers knowingly and voluntarily entered into his appellate waiver, and enforcement of the waiver would not amount to a miscarriage of justice, the appellate waiver bars Chambers fr om seeking a ruling on the merits of his appeal . Thus, we will enforce the waiver and affirm the sentence

. III For the foregoing reasons, we will affirm the judgment of sentence

.

4 Chambers wisely does not contest the applicability of the obstruction of justice enhancement as it clearly applies given his flight before sentencing. U.S.S.G. § 3C1.1 cmt. n.4(E) (identifying “willful[] fail [ ure ] to appear . . . for a judicial proceeding” as an example of condu ct warranting the enhancement ) . Ordinarily, “[c]onduct resulting in an enhancement under § 3C1.1 . . . indicates that the defendant has not accepted responsibility for his criminal conduct,” though application of both sections may be warranted in “extraor dinary cases.” U.S.S.G. § 3E1.1 cmt. n.4. Although we decline to reach the acceptance of responsibility issue, we note that even if we were to review it , we would see no clear error in declining to deem Chambers’s circumstances to present an extraordinar y case where a court could grant a § 3E1.1 reduction to a defendant who received a § 3C1.1 enhancement.