NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-1554

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UNITED STATES OF AMERICA

v.

EVAN MATTHEW LAWBAUGH,

 Appellant

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On Appeal from the United States

District Court for the Middle District of Pennsylvania

(D.C. No. 1-16-cr-00049-001)

District Judge: Hon. Sylvia Rambo

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

on December 16, 2020

Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.

(Opinion Filed: January 20, 2021)

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OPINION*

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∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

FUENTES, Circuit Judge.

Evan Lawbaugh appeals from the District Court’s judgment reentering his originally 

imposed 40-year sentence. We conclude that this appeal is barred by the waiver provision 

in Lawbaugh’s plea agreement, decline to decide the merits of his claims, and otherwise 

affirm the District Court’s decision.

1

I.

Lawbaugh pled guilty to two counts of sexual exploitation of a child in violation of 

18 U.S.C. § 2251(a). Under the terms of his plea agreement, Lawbaugh waived his right 

to appeal his conviction and sentence.2 At sentencing, Lawbaugh presented mitigating 

testimony and other evidence regarding his Asperger’s diagnosis. The Government then 

requested the maximum possible sentence of 100 years’ imprisonment. Lawbaugh urged 

the District Court to instead impose the mandatory minimum of 25 years. The District 

Court ultimately sentenced Lawbaugh to 40 years in prison followed by a 30-year term of 

supervised release.

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

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 

2 The waiver provision states, in relevant part, that “the defendant knowingly waives 

the right to appeal the conviction and sentence. This waiver includes any and all possible 

grounds for appeal, whether constitutional or non-constitutional, including, but not limited 

to, the manner in which that sentence was determined in light of United States v. Booker, 

543 U.S. 220 (2005).” App. 25a. 
3

Lawbaugh did not directly appeal his sentence. Instead, he filed a post-conviction 

motion in the District Court to vacate it on other grounds. Lawbaugh argued that he did 

not knowingly waive his right to appeal and the waiver was therefore invalid, and that his 

then-counsel was ineffective for several other reasons. The District Court rejected nearly 

all of these claims, but concluded that Lawbaugh had been prejudiced by his counsel’s 

failure to file a notice of appeal before the deadline expired. It explained that while the 

appellate waiver precluded Lawbaugh from appealing his conviction and sentence, there 

are other appellate rights that cannot be waived. Thus, despite the waiver, counsel should 

have filed a notice of appeal to preserve review of those unwaivable issues. The District 

Court granted Lawbaugh’s motion in part, solely to provide him with an opportunity to file 

a notice of appeal, but otherwise reentered the same 40-year sentence.

II.

3

A.

Despite the appellate waiver, Lawbaugh now asks us to vacate his sentence as both 

procedurally and substantively unreasonable. He argues that the waiver provision does not 

bar this appeal because he is challenging the reentered 40-year sentence, not the original 

40-year sentence. Lawbaugh concedes that the waiver bars him from challenging “the 

3

“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).
4

conviction and [original] sentence,” but that it “did not contemplate a subsequent 

ineffective assistance claim that vacated the original sentence and a subsequent entry of 

another sentence.”4 Thus, according to Lawbaugh, the waiver does not apply. 

Lawbaugh admits, however, that the District Court’s post-conviction order in no 

way modified his sentence. That order granted Lawbaugh’s motion solely to provide him 

with an opportunity to file a notice of appeal to preserve review of the unwaivable issues 

not covered by the waiver provision. Entry of the order required the District Court to 

temporarily vacate his sentence, but it then, in Lawbaugh’s own words, “summarily reentered the exact same sentence,” and “denied all the other issues raised.”5

 Though 

Lawbaugh tries to differentiate the two, it is telling that nearly all of his appellate claims

are based on errors the District Court purportedly made during the initial sentencing 

hearing.6 Because the “reentered” sentence is identical to the “original” one, we conclude 

that this appeal is barred by the appellate waiver.7

4 Appellant’s Reply at 4; see also Appellant’s Br. at 7 n.4.

5 Appellant’s Br. at 7. 

6 See, e.g., Appellant’s Br. at 11 (arguing that the District Court “plainly committed 

error” because “[a]t the sentencing hearing, after approximately two hours of testimony 

and argument, the [D]istrict [C]ourt immediately segued into a rote dictation of its sentence 

without offering any explanation for it.”).

7 Despite his concession that the sentences are identical, Lawbaugh argues in reply 

that the reentered sentence somehow modified the original. He cites United States v. 

Wilson, 707 F.3d 412, 415-16 (3d Cir. 2013), in which this Court determined that a broad 
5

B.

Because we conclude that the waiver covers this appeal, we will enforce it unless

our doing so would result in a “miscarriage of justice.”8 To determine whether such an 

injustice would occur, we must look to the merits of Lawbaugh’s claims, recognizing that 

“it will be a rare and unusual situation when claims of an unreasonable sentence, standing 

alone, will be sufficient to invalidate a waiver because of a miscarriage of justice.”9

Lawbaugh argues that the District Court made procedural and substantive errors in 

determining his sentence. Procedurally, he argues that the District Court did not 

sufficiently state its reasons for imposing the 40-year sentence. Though the District Court 

waiver does not always preclude a defendant from challenging a future modification to his 

sentence. But in Wilson, the defendant’s original sentence was later modified to require 

participation in a mental-health program as a condition of supervised release that was not 

initially imposed. See id. at 414, 416. Wilson does not compel a different result here. 

8

“[W]aivers of appeals are generally permissible if entered into knowingly and 

voluntarily, unless they work a miscarriage of justice.” Khattak, 273 F.3d at 558. The 

“miscarriage of justice” inquiry requires us to consider the “clarity of the error, its gravity, 

its character . . . 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. at 

563 (quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). Substantial 

evidence supports the conclusion that Lawbaugh understood the terms and scope of the 

waiver when he voluntarily entered his guilty plea. See, e.g., App. 38a (The Court: “Do 

you also understand that you have waived a direct appeal? Normally, a defendant is entitled 

to appeal not only his conviction but his sentence, and you have waived taking an 

appeal. Do you understand that?” Defendant: “Yes, Your Honor.”)

9 United States v. Jackson, 523 F.3d 234, 244 (3d Cir. 2008). 
6

heard hours of testimony on Lawbaugh’s diagnosis, it did not explicitly reference the 

details of that testimony on the record. But where the matter before the court is 

straightforward and the record, as a whole, “makes clear that the sentencing judge

considered the evidence and arguments, . . . the law [does not] require[] the judge to write 

more extensively.”10 Here, the record is clear that the court heard extensive testimony 

regarding the diagnosis and overruled certain of the Government’s objections with respect 

to the same. Additionally, the District Court stated that it had read Lawbaugh’s expert 

report, which also discussed the diagnosis, prior to sentencing. The District Court was 

further advised that the Government had no objections to the presentence report, explicitly 

stated that it had reviewed Lawbaugh’s submission with respect to the same, and invited 

his counsel to expound on it. The record as a whole confirms that the District Court 

meaningfully considered Lawbaugh’s diagnosis in calculating the sentence, even if it did 

not necessarily say so on the record. 

Substantively, Lawbaugh argues that the District Court did not give enough weight 

to his Asperger’s, and so did not properly weigh the sentencing factors set forth in 18 

10 Rita v. United States, 551 U.S. 338, 359 (2007) (“We acknowledge that the judge 

might have said more. He might have added explicitly that he had heard and considered 

the evidence and argument; . . . and that he found [defendant’s] personal circumstances 

here were simply not different enough to warrant a different sentence. But context and the 

record make clear that this, or similar, reasoning underlies the judge’s conclusion.”).
7

U.S.C. § 3553. Again, the record reflects that the District Court meaningfully considered 

the mitigating evidence that Lawbaugh presented. The District Court then considered the 

Government’s request for a 100-year sentence and Lawbaugh’s request for the 25-year 

mandatory minimum. The District Court ultimately imposed a 40-year sentence, which 

represents a 60% downward variance from the Government’s request. The District Court 

then concluded on the record that this result was “sufficient but not greater than necessary” 

based on the crimes committed.11 Nothing suggests that the District Court ignored 

Lawbaugh’s diagnosis in determining the length of his sentence. 

The record does not show that the District Court made any procedural or substantive 

error in calculating Lawbaugh’s sentence. We therefore conclude that there will be no 

“miscarriage of justice” should the waiver be enforced. As such, we conclude that this 

appeal is barred by the appellate waiver, decline to consider the merits further, and 

otherwise affirm the decision of the District Court. 

III.

For the foregoing reasons, the judgment of the District Court will be affirmed. 

11 App. 146a.