IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. : NO. 05-56-10

:

EDWARD BALL :

MEMORANDUM

KEARNEY, J. January 6, 2021

Prosecutors and accused parties enter into detailed plea agreements presumably because 

each expects a benefit from a plea. We enforce plea agreements after extensive questioning of 

the accused during a plea hearing to ensure a voluntary and knowing plea and a full 

understanding of the waived rights. A defendant often agrees to waive challenging his sentence 

in exchange for avoiding trial by pleading guilty with limited exceptions for challenging 

sentences above the statutory limits or sentencing guidelines or for ineffective assistance of 

counsel. We today review a motion from a formerly incarcerated man seeking to reduce his tenyear term of supervised release by seven years, citing his rehabilitation and advanced age. But 

he agreed at age fifty-five to voluntarily and expressly waive all rights to challenge this sentence 

or any other matter relating to the prosecution under any provision of law with limited 

exceptions not applying today. He waived his present request. Judge Stengel confirmed his 

voluntary and knowing waiver before accepting his plea. Absent evidence of injustice, we 

enforce his negotiated waiver of a right reduce his supervised release as fully explained to him 

during his plea and then confirmed to be knowingly and voluntarily accepted.

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I. Facts

Our Grand Jury returned a thirty-five count indictment against nineteen defendants in 

February 2002 for crimes related to a heroin conspiracy.

1

 The Grand Jury charged Edward Ball 

with five counts: one count of conspiracy to distribute more than 1 kilogram of heroin within 

1000 feet of a federally protected area; one count of using a communication device in 

furtherance of drug activity; two counts of distributing heroin; and one count of possessing 

heroin with the intent to distribute.2 Mr. Ball entered a plea agreement with the United States to 

plead guilty to conspiracy and using a communication device in furtherance of drug activity.3

 In 

exchange, the United States agreed to dismiss the possession and distribution charges.4

 

Mr. Ball signed his plea agreement confirming:

In exchange for the undertakings made by the government in 

entering this plea agreement, the defendant voluntarily and 

expressly waives all rights to appeal or collaterally attack the 

defendant’s conviction, sentence, or any other matter relating to 

this prosecution, whether such a right or appeal or collateral attack 

arises under 18 U.S.C. § 3742, 28 U.S.C. §1291, 28 U.S.C. §2255, 

or any other provision of law. This waiver is not intended to bar 

the assertion of constitutional claims that the relevant case law 

holds cannot be waived.5

Two lines above Mr. Ball’s signature line, the plea agreement confirms Mr. Ball’s 

understanding, “I understand I have waived my right to appeal, except as set forth in the 

appellate waiver provisions of my plea agreement.”6

 

At the guilty plea colloquy, Judge Stengel asked the United States to summarize the 

terms of the plea agreement.7 The Assistant United States Attorney summarized, “[t]he 

defendant agrees to waive all rights to appeal or collaterally attack his conviction or sentence or 

any other matter pertaining to the prosecution.”8 Later in the colloquy, Judge Stengel reviewed 

the appellate waiver with Mr. Ball. He asked, “Okay, by pleading guilty under this agreement 

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you’d give up all those rights to appeal, that means you can’t appeal from my sentence, unless I 

sentence you above the guidelines or above the maximum, which is going to be hard because the 

maximum is life, and you could also appeal if the Government appealed, do you understand 

that?”9 Mr. Ball confirmed he understood.10 Judge Stengel also specified, “[a]nd, that also 

means you give up your right to file habeas corpus” and explained habeas corpus to Mr. Ball.11 

Mr. Ball confirmed he understood.12

The Assistant United States Attorney also summarized the sentencing implications for 

Mr. Ball’s guilty plea. Judge Stengel asked Mr. Ball whether he understood “the total maximum 

is life with a mandatory minimum of ten years . . . up to a lifetime of supervised release,” and 

Mr. Ball responded, “I understand, yeah.”13 Judge Stengel asked Mr. Ball a series of questions 

to ascertain whether Mr. Ball’s guilty plea was knowing and voluntary,14 and, satisfied with Mr. 

Ball’s answers, he accepted the plea.15

Judge Stengel later sentenced Mr. Ball to concurrent prison terms of 180 and 48 months, 

followed by concurrent ten and one year terms of supervised release.16 Mr. Ball served his 

prison sentence. He began his term of supervised release on March 30, 2018. His supervised 

release will expire on March 30, 2028.17 Since his release, Mr. Ball has maintained steady 

employment and has otherwise complied with the terms of his release, which include drug 

testing, in-person reporting, and paying a one-time special assessment.18 He also reports he has a 

good relationship with his probation officer and has surrounded himself with positive support 

and stability to ensure his continued success.19 At sixty-eight years old, he expresses no desire to 

return to his past criminal activities.20 

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II. Analysis

Mr. Ball now asks we terminate supervised release seven years early, arguing his good 

behavior and age demonstrate a low likelihood of recidivism.21 The United States opposes, 

arguing the appellate waiver in Mr. Ball’s plea agreement confirmed at length before Judge 

Stengel bars Mr. Ball from challenging his sentence, and even if it did not, Mr. Ball has not 

demonstrated the terms of supervised release impose an undue burden on him, nor has he 

demonstrated changes in his circumstances warrant early termination.22 While we applaud Mr. 

Ball’s rehabilitation and hope for his continued success in the future, we agree with the United 

States the appellate waiver bars his petition.

Our Court of Appeals directs us to enforce an appellate waiver in a plea agreement “only 

‘if we conclude (1) that the issues [a 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.’”23 We find Mr. Ball’s petition 

falls within the scope of his knowing and voluntary waiver, and we further find enforcing the 

waiver would not result in a miscarriage of justice. 

Mr. Ball’s petition falls within the scope of his appellate waiver. In United States v. 

Oyerinde, our Court of Appeals reviewed Judge Pappert’s order denying early termination of 

supervised release to a petitioner whose plea agreement contained an identical appellate waiver 

to the one contained in Mr. Ball’s plea agreement.24 Like Mr. Ball’s appellate waiver, the 

appellate waiver in Oyerinde provided:

[T]he defendant voluntarily and expressly waives all rights to appeal or collaterally attack 

the defendant's conviction, sentence, or any other matter relating to this prosecution, 

whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 

U.S.C. § 1291, *112 28 U.S.C. § 2255, or any other provision of law.25

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On appeal, the United States invoked the appellate waiver for the first time, and the 

petitioner argued the appeal fell outside the scope of the waiver since he did not appeal or 

collaterally attack under one of the identified statutes.

26 Our Court of Appeals rejected the 

petitioner’s argument explaining, “[a]t its core, Defendant’s motion for early termination of 

supervised release challenged his original sentence by seeking to shorten the term of his 

supervised release.”27 The Court of Appeals held, “Defendant’s appeal from the denial of the 

motion for early termination of supervised release likewise implicates his sentence,” and it 

granted the United States’ “motion to enforce the appellate waiver because Defendant’s 

challenge to his supervised release term falls within the scope of the appellate waiver.”28 

Consistent with our Court of Appeals’ decision in Oyerinde, we find the identical appellate 

waiver provision in Mr. Ball’s plea agreement bars his petition.29

Mr. Ball knowingly and voluntarily agreed to the appellate waiver. Judge Stengel closely 

reviewed Mr. Ball’s plea agreement with him during the plea colloquy. He explained to Mr. Ball 

he faced life imprisonment and a potential life-term of supervised release. He also explained to 

Mr. Ball the plea agreement waived Mr. Ball’s rights to appeal his sentence. Mr. Ball confirmed 

he understood these terms. Judge Stengel also asked Mr. Ball several questions about whether 

his plea was knowing and voluntary, and Mr. Ball answered these questions to Judge Stengel’s 

satisfaction. Mr. Ball does not offer a basis for us to question the voluntariness of his plea, and 

we do not find any from our review of the record.

Enforcing the appellate waiver also does not work a miscarriage of justice. Our Court of 

Appeals instructs, “the term ‘miscarriage of justice’ is more a concept than a constant.”30 

Nevertheless, the Court of Appeals directs us to consider several factors in determining whether 

enforcing a waiver would work a miscarriage of justice, including: “the clarity of the error, its 

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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.”31 Our Court of 

Appeals cautions us to apply the miscarriage of justice exception “sparingly and without undue 

generosity.”32

Mr. Ball does not claim error in Judge Stengel’s sentence, nor does he claim a change in 

the applicable sentencing guidelines or statutes or a newly discovered fact. He does not 

demonstrate how the terms of supervised release have negatively interfered with his life, nor 

does he identify changes in his life rendering the terms of his release unduly restrictive or 

burdensome. While we understand Mr. Ball, at sixty-eight years old, may be less likely to return 

to his life of crime, Judge Stengel knew Mr. Ball’s age at the time of sentencing and knew how 

old Mr. Ball would be during his supervised release. Judge Stengel, familiar with Mr. Ball’s 

long criminal history and the seriousness of the charges against him, thought it appropriate to 

sentence then fifty-five-year old Mr. Ball to 180 months imprisonment followed by a ten-year 

term of supervised release. We have no basis to find enforcing this sentence to be a miscarriage 

of justice. 

III. Conclusion

We deny Mr. Ball’s petition for early termination of supervised release. 

1

 ECF Doc. No. 1.

2 Id.

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3 ECF Doc. No. 915 at 2.

4 Id. at 2-3.

5 Id. at 6.

6 Id. at 9.

7 Id. at 19.

8 Id.

9 Id. at 30.

10 Id.

11 Id. at 31-34.

12 Id.

13 Id. at 21.

14 See, e.g., id. at 21-22.

15 Id. at 47.

16 ECF Doc. No. 622 at 2-3

17 ECF Doc. No. 950 at 11. 

18 Id.; ECF Doc. No. 940.

19 Id.

20 Id.

21 Id.

22 ECF Doc. No. 950. 

23 United States v. Damon, 933 F.3d 269, 272 (3d Cir. 2019) (quoting United States v. Corso, 

549 F.3d 921, 927 (3d Cir. 2008).

24 784 Fed. App’x 111 (2019). 

25 Id. at 111-12.

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26 The difference in the procedural posture presented in Oyerinde does not change our analysis 

because the Court of Appeals seemed to acknowledge the United States could have raised the 

appellate waiver and prevailed in the District Court. See id. at 113 n.12 (“The Government’s 

decision not to invoke the waiver before the District Court could be explained by a view that the 

Government decided that the best way to proceed before the District Court was to address the 

merits. This, however, should not preclude them from relying on the appellate waiver to bar 

further review.”)

27 Id.

28 Id.

29 We are also mindful of the Crews decision in this District from last November finding the 

appellate waiver identical to the provision at issue here and in Oyerinde “does not constitute an 

appeal or collateral attack of [the petitioner’s] sentence, which would be covered by the appellate 

waiver and, accordingly, we conclude that [the petitioner] did not waive his right to bring the 

instant Motion in his Guilty Plea agreement.” United States v. Crews, No. 10-663-5, 2020 WL 

6581430 (E.D. Pa. Nov. 10, 2020). In reaching this conclusion, our colleague Padova 

distinguished our Court of Appeals’ opinions in United States v. Goodson, 544 F.3d, 529 (3d Cir. 

2008) and United States v. Laine, 404 F. App’x 571 (3d Cir. 2010), but did not address the 

Court’s 2019 decision in Oyerinde. In light of Oyerinde, we respectfully disagree with the 

holding in Crews as the nature of a motion to terminate supervised release is an attempt to

change or alter a sentence. Mr. Ball is asking us to change his sentence. He waived this right 

absent the United States’ consent.

30 United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005) (quoting United States v. Teeter, 257 

F.3d 14, 26 (1st Cir. 2001)).

31 Id. (quoting Teeter, 257 F.3d at 26).

32 Id. (quoting Teeter, 257 F.3d at 26).

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