1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-3782

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UNITED STATES OF AMERICA

v.

SEAN MOORE,

 Appellant

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Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1:16-cr-00077- 001)

District Judge: Hon. Richard G. Andrews

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

February 3, 2020

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Before: SHWARTZ, SCIRICA, and RENDELL, Circuit Judges

(Filed: February 5, 2020)

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OPINION*

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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.
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Sean Moore received an 18-month sentence for his federal program theft

convictions and now appeals. Because Moore waived his right to appeal, and no manifest 

injustice will result from enforcing the waiver, we will grant his counsel’s motion to 

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and dismiss the appeal.

I

Moore served as the Director of Finance and Operations (“DFO”) for the Family 

Foundations Academy, a charter school in New Castle, Delaware. Moore 

misappropriated $161,871 of school funds for his personal use.

The Government charged Moore in a criminal information with three counts of 

federal program theft in violation of 18 U.S.C. § 666(a)(1)(A) and (b). Moore pleaded 

guilty to the information pursuant to a plea agreement. The plea agreement contained a

provision expressly waiving the right to file any appeal, except in the case of ineffective 

assistance of counsel or in certain other circumstances. Specifically, Moore’s plea 

agreement:

reserve[d] the right . . . to appeal if: (a) the [G]overnment appeals from the 

sentence, (b) the defendant’s sentence exceeds the statutory maximum for 

the offense set forth in the United States Code, or (c) the sentence 

unreasonably exceeds the Sentencing Guidelines range determined by the 

District Court in applying the United States Sentencing Guidelines.

App. 25-26.

After the plea, the Probation Office prepared a Presentence Report, which

calculated a Guidelines range of 18 to 24 months’ imprisonment based on a total offense 

level of 15 and a criminal history category of I. The Government filed a motion 
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requesting a one-level downward departure that reduced the Guidelines range to 15 to 21

months. Moore asked the Court to depart further from the Guidelines range to a noncustodial sentence or home confinement. 

The Court granted the Government’s motion for a one-level downward departure,

adopted the 15 to 21 month Guidelines range, and sentenced Moore to 18 months’ 

imprisonment followed by 3 years’ supervised release. In arriving at this sentence, the 

Court considered the relevant 18 U.S.C. § 3553(a) factors and focused on the nature and 

circumstances of the offense, Moore’s personal characteristics, and the need for 

deterrence and to avoid unwarranted sentence disparities. Moore was also ordered to pay 

$161,871 in restitution and a special assessment of $300.

At Moore’s request, his counsel filed a notice of appeal. Counsel also filed a brief 

pursuant to Anders. In the Anders brief, counsel explains that Moore believes the District 

Court should have sentenced him to home confinement followed by supervised release, 

but counsel concludes that any such argument would be frivolous because of Moore’s 

appellate waiver.

II1

 

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 

pursuant to 28 U.S.C. § 1291. We exercise plenary review to determine whether there 

are any non-frivolous issues for appeal. Penson v. Ohio, 488 U.S. 75, 80 (1988). While 

an appellate “waiver does not deprive us of subject matter jurisdiction, . . . when the 

waiver is valid, we will not exercise that jurisdiction to review the merits of [the] appeal.” 

United States v. James, 928 F.3d 247, 252 (3d Cir. 2019) (alteration in original) (internal 

quotation marks omitted). Under such a circumstance, we may dismiss the appeal. See 

id.
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A

“Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme 

Court promulgated in Anders to assure that indigent clients receive adequate and fair 

representation.” United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Defense 

counsel may file a motion to withdraw and an accompanying brief pursuant to Anders

when counsel has reviewed the record and concluded that “the appeal presents no issue of 

even arguable merit.” Third Circuit L.A.R. 109.2(a). When counsel submits an Anders

brief, we must determine: “(1) whether counsel adequately fulfilled the rule’s 

requirements; and (2) whether an independent review of the record presents any 

nonfrivolous issues.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d 

778, 780 (3d Cir. 2000)). To determine whether counsel has fulfilled the rule’s 

requirements, we examine the brief to see if it: (1) shows that counsel has thoroughly 

examined the record in search of appealable issues, identifying those that arguably

support the appeal even if wholly frivolous, Smith v. Robbins, 528 U.S. 259, 285 (2000); 

and (2) explains why the issues are frivolous, Marvin, 211 F.3d at 780-81. If these 

requirements are met, we need not scour the record for issues and the Anders brief guides 

our review. Youla, 241 F.3d at 301.

Counsel’s Anders brief satisfies both elements, and an independent review of the 

record reveals no non-frivolous issues. First, the brief demonstrates an examination of 

the record in search of appealable issues. It analyzes Moore’s appellate waiver, 

concluding that the waiver precludes this Court from considering his appeal, and 
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examines the District Court’s decision to grant the Government’s departure motion and 

its consideration of the § 3553(a) factors. Second, the brief explains why a challenge to 

the sentence is frivolous, both because any such appeal is foreclosed by the appellate 

waiver and because Moore’s claim has no arguable merit. Counsel’s Anders brief is 

therefore sufficient, and we will proceed to consider whether the appellate waiver bars 

this appeal.

B

We will generally decline to entertain an appeal and “will enforce an appellate 

waiver . . . 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.” United States v. Grimes, 739 F.3d 125, 128-29 (3d Cir. 2014) (quoting United 

States v. Wilson, 707 F.3d 412, 414 (3d Cir. 2013)); see also United States v. Corso, 549 

F.3d 921, 927 (3d Cir. 2008); United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). 

“We review the validity and scope of an appellate waiver de novo.” Grimes, 739 F.3d at 

129. 

To determine the scope of an appellate waiver, we examine the language of the 

plea agreement and strictly construe it. Corso, 549 F.3d at 927 (citation omitted). The 

text of the appellate waiver provision here provides that “defendant knows that he has, 

and voluntarily and expressly waives, the right to file any appeal,” App. 25, except if: (1) 

there was ineffective assistance of counsel; (2) the Government appealed from the 
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sentence; (3) the sentence exceeded the statutory maximum set forth in the United States 

Code; or (4) the sentence unreasonably exceeded the Sentencing Guidelines range 

determined by the District Court. 

None of the exceptions apply. There is no allegation that counsel was ineffective,

the Government has not appealed, and the sentence did not exceed the statutory 

maximum or the applicable Guidelines range. As to this last point, the District Court 

departed from the applicable guidelines range. As a result, counsel correctly concluded 

that any challenge to Moore’s sentence would fall within the scope of the appellate 

waiver. 

Additionally, there is nothing in the record to suggest that Moore did not agree to 

the appellate waiver knowingly and voluntarily. Although the transcript of the plea 

hearing is absent from the record, there is no allegation that the District Court failed to 

conduct the plea hearing in accordance with Fed. R. Crim. P. 11 or that it failed to 

address Moore in open court and confirm he understood the appellate waiver. Fed. R. 

Crim. P. 11(b)(1)(N). Rather, both Moore’s counsel and the Government affirmatively 

state that Moore’s guilty plea was knowing and voluntary. Moreover, Moore affirmed 

his understanding of the appellate waiver in writing by signing the plea agreement. In 

addition, during his sentencing, Moore spoke about his understanding of the 

consequences of his conduct and did not assert his plea was not knowing and voluntary.

Finally, Moore has not filed a pro se brief suggesting that his appellate waiver was not 

knowing and voluntary. Thus, there is no non-frivolous argument that Moore did not 
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knowingly and voluntarily enter a guilty plea pursuant to a plea agreement, which 

included a waiver of his right to appeal.

Finally, enforcing the waiver would not work a miscarriage of justice. “[T]he 

miscarriage of justice exception to appellate waivers applies only in ‘unusual 

circumstance[s] . . . with the aim of avoiding manifest injustice.’” Grimes, 739 F.3d at

130 (quoting Castro, 704 F.3d at 136). Here, there is no error, and hence no manifest 

injustice. Moore was charged in a district court with jurisdiction, entered a knowing and 

voluntary guilty plea to the charges, and was sentenced below the statutory minimum. 

Moreover, the District Court calculated the Guidelines range, granted the Government’s 

motion, considered the § 3553(a) factors, and imposed an 18-month sentence, which was 

in the middle of the applicable Guidelines range. See United States v. Fountain, 792 F.3d 

310, 322 (3d Cir. 2015) (“Sentences that fall within the applicable guidelines range are 

more likely to be reasonable than those that do not.”). Thus, any claim that the sentence 

was procedurally or substantively unreasonable would be frivolous. Furthermore, we

lack jurisdiction to review the extent of a departure a district court grants. United States 

v. Watson, 482 F.3d 269, 271 n.2 (3d Cir. 2007) (“We do not have jurisdiction to review . 

. . appeals by defendants challenging the extent of a downward departure.”). In short, 

there were no errors, and so there is no miscarriage of justice from enforcing the appellate 

waiver. 
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IV

For the foregoing reasons, we will grant counsel’s motion to withdraw and dismiss 

the appeal.

2

 

2 Moore is hereby advised that under the Criminal Justice Act, counsel is not 

obligated to file any further applications, including a petition for rehearing in this Court 

or a petition for writ of certiorari in the United States Supreme Court. See L.A.R. 35.4; 

109.2(b). If Moore wishes to pursue these avenues, he must either retain counsel or 

pursue them pro se. Moore should note that a petition for rehearing en banc must be filed 

within 14 days of the entry of judgment. Counsel shall timely send a copy of this opinion 

to Moore.