2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-28-2014

USA v. Damion Barrett

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1260

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Recommended Citation

"USA v. Damion Barrett" (2014). 2014 Decisions. Paper 349.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/349
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 13-1260

__________

UNITED STATES OF AMERICA

v.

DAMION BARRETT,

 Appellant

__________

On Appeal from the District Court of the Virgin Islands

(D.C. Criminal No. 1-11-cr-00009-001)

District Judge: Honorable Raymond L. Finch

Submitted Under Third Circuit LAR 34.1(a)

December 12, 2013

BEFORE: FISHER, COWEN, and NYGAARD, Circuit Judges

(Opinion Filed: March 28, 2014)

__________

OPINION OF THE COURT

__________

NYGAARD, Circuit Judge.

Damion Barrett was convicted of conspiracy to possess with intent to distribute 

cocaine, and possession with intent to distribute, in violation of 21 U.S.C. § 846, and 21 

U.S.C. § 841(a)(1) and (b)(1)(B). Barrett now appeals the judgment of conviction and 
2

sentence, asserting that the United States Customs and Border Protection’s secondary 

inspection of him at the St. Croix airport violated the Privileges and Immunities Clause of 

Article IV of the United States Constitution. U.S. Const. art. IV, § 2. The Government 

asserts that Barrett made an unconditional plea of guilty, waiving his right to appeal. We 

agree. Accordingly, we will decline to exercise our jurisdiction and will affirm the 

judgment of conviction and sentence.

The framework for our review of an appellate waiver is well established.

The ability to waive statutorily created rights, such as the 

right to appeal a criminal conviction, logically flows from a 

defendant's ability to waive constitutional rights. Thus, “[w]e 

will enforce an appellate waiver and decline to review the 

merits of an appeal where we conclude (1) that the issues [the 

defendant] pursues on appeal fall within the scope of his 

appellate waiver and (2) that he knowingly and voluntarily 

agreed to the appellate waiver, unless (3) enforcing the 

waiver would work a miscarriage of justice.” We review the 

validity and scope of an appellate waiver de novo.

United States v. Grimes, 739 F.3d 125, 128-29 (3d Cir. 2014) (citations omitted).

Barrett does not contest that he changed his plea to guilty without any plea 

agreement. He does not assert that his plea was unknowing or involuntary.1 Barrett 

admitted guilt in open court before and after the entry of his guilty plea. He also 

 1 Represented by counsel, Barrett moved to change his plea to guilty without any plea 

agreement, or any attempt to negotiate with the Government. The Magistrate Judge 

reviewed the charges with Barrett, and conducted a proper colloquy to ascertain Barrett’s 

assent to the change of plea. The Magistrate Judge reviewed with Barrett the charges, the 

factual basis for the charges, and the sentence ranges and penalties applicable to those 

crimes. He determined, upon questioning, that Barrett’s plea was knowing and voluntary, 

and prepared a Report and Recommendation that the District Court accept the plea. The 

District Court did so, granting Barrett’s motion to change his plea to guilty on January 

18, 2012.
3

stipulated in his presentence memorandum that he was attempting to smuggle contraband 

from the Virgin Islands. Finally, he failed to object to the Magistrate Judge’s and the 

Government’s recitation of the specific facts underlying the crimes at the change of plea 

hearing, and in the presentence report.2

In spite of all of this, Barrett presses an Article IV challenge, characterizing the 

airport search that resulted in his arrest as an unauthorized border inspection. In so 

doing, he ignores precedent recognizing the validity of establishing “a border between the 

Virgin Islands and the rest of the United States for purposes of customs.” United States 

v. Hyde, 37 F.3d 116, 121 (3d Cir. 1994). Therefore, even were we to ignore his repeated 

admissions of factual guilt that would moot this attempt to suppress the very same 

evidence, we would rule that enforcement of his appellate waiver would not result in a 

miscarriage of justice. See Grimes, 739 F.3d at 130. 

From all of this we conclude that Barrett was convicted and sentenced upon an 

unconditional plea of guilty, waiving his right to appeal the issue he now raises. 

Therefore, we will affirm the order of the District Court. 

 2 On January 30, 2012, Barrett filed a “request to change plea” asserting that, under Rule 

11(a)(2) of the Federal Rules of Criminal Procedure, he was still entitled to challenge the 

denial of his motion to suppress even absent the Government’s consent. In his 

presentence memorandum, filed on December 6, 2012, Barrett continued to express his 

view that “his rights were violated” as detailed in his motion to suppress. Nonetheless, in 

the twelve months between filing his “request” and the sentencing hearing, Barrett took 

no action to press for a disposition of this request. Then, at the sentencing hearing on 

January 18, 2013, the District Court asked Barrett to voice any objections or reasons to 

refrain from moving ahead with sentencing. Barrett’s counsel abandoned his request to 

change his plea, stating: “I have no reason at all why sentence cannot and should not be 

imposed at this time.” The District Court then entered a judgment of conviction and 

sentence without any objection from Barrett.