NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-3622

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UNITED STATES OF AMERICA

v.

MIGUEL A. ESPERANZA-VASQUEZ,

 Appellant

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Appeal from the District Court of the Virgin Islands

(D. V.I. No. 1-15-cr-00017-001)

District Judge: Honorable Wilma A. Lewis

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

May 5, 2017

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

(Filed: June 12, 2017)

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OPINION*

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SHWARTZ, Circuit Judge.

Miguel Esperanza-Vasquez pleaded guilty to committing wire fraud and now 

appeals the District Court’s judgment of conviction. Because Vasquez waived his right 

 

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

does not constitute binding precedent.
2

to appeal, he has presented no bases against enforcing the waiver, and there are no nonfrivolous bases to appeal, we will grant his counsel’s motion to withdraw pursuant to 

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

I

Vasquez, pretending to be a law enforcement officer, stopped undocumented 

immigrant Loftus John while John was driving. Vasquez told John that he could help

him obtain immigration documentation. Vasquez also told John that if he failed to pay 

him, John would be deported. John acceded to these demands and kept a ledger detailing

the more than $27,000 he paid to Vasquez. Some of this money was paid by wire. 

Vasquez was charged with various offenses and pleaded guilty to one count of 

wire fraud in violation of 18 U.S.C. § 1343 pursuant to a plea agreement that contained 

an appellate waiver provision. Under the provision, Vasquez waived his right to appeal 

any sentence imposed or the manner in which it was imposed, so long as it did not exceed 

the statutory maximum sentence, and waived his right to petition federal courts for a writ 

of habeas corpus, except to raise a claim of ineffective assistance of counsel. The parties 

also agreed that, for purposes of sentencing, the amount of loss was $14,999 and 

Vasquez’s advisory sentencing range under the United States Sentencing Guidelines (the 

“Guidelines” or “U.S.S.G.”) would be zero to six months’ imprisonment. 

Following the plea, the Probation Office prepared a Presentence Investigation 

Report (“PSR”), which concluded that the amount of loss was actually $27,190, and that 

sentencing enhancements applied for (1) falsely representing a police officer, under 
3

U.S.S.G. § 2B1.1(b)(9), and (2) for committing an offense against a person Vasquez 

knew or should have known was a “vulnerable victim,” under U.S.S.G. § 3A1.1(b). As a 

result, the PSR concluded that the Guidelines sentencing range was 18 to 24 months’ 

imprisonment. 

Both parties objected to the PSR’s loss calculation and sentencing enhancements. 

The District Court held an evidentiary hearing to consider these objections, and both John 

and Vasquez testified about the facts underlying the conviction. App. 98-170. The 

District Court found that: (1) John’s testimony was more credible than Vasquez’s since it 

was more detailed and internally consistent, and on this basis concluded that the loss 

amount was $27,120; (2) Vasquez falsely represented himself to be a police officer to 

commit the crime, and resulting in a two-level increase under § 2B1.1(b)(9); and (3) John

was a “vulnerable victim,” resulting in a two-level enhancement under § 3A1.1(b). 

Based on these guideline calculations, the District Court concluded that the applicable 

Guidelines range was 18 to 24 months’ imprisonment. 

After hearing arguments for a downward variance from defense counsel and the 

Government, the District Court imposed a sentence of 24 months’ imprisonment, three 

years of supervised release, and restitution in the amount of $27,120. Vasquez filed a 

notice of appeal, and his counsel filed a brief pursuant to Anders, 386 U.S. at 738, stating 

that there are no non-frivolous grounds for an appeal and filed a motion to withdraw. 
4

 II1

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). Rule 109.2(a) 

allows defense counsel to file both a motion to withdraw and a brief pursuant to Anders

when counsel concludes 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 

 

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).
5

the record in search of appealable issues. It notes that there is an appellate waiver yet 

nonetheless identifies potential issues concerning the reasonableness of the sentence, 

focusing on the District Court’s application of a sentencing enhancement based on a loss 

calculation greater than that stipulated to in the plea agreement, and a potential 

ineffective assistance of counsel claim against trial counsel. Second, the brief explains 

why challenges to these issues are frivolous, both because any such appeal is foreclosed 

by the appellate waiver included in the plea agreement and because these claims have no 

merit. Counsel’s Anders brief is therefore sufficient, and we will proceed to consider 

whether the appellate waiver is enforceable.

B

We will generally decline to entertain an appeal if (1) the issues on appeal “fall 

within the scope” of an appellate waiver, and (2) the defendant “knowingly and 

voluntarily agreed to the appellate waiver.”2 United States v. Corso, 549 F.3d 921, 927 

(3d Cir. 2008); see also United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). We 

will, however, invalidate a waiver whose enforcement would cause a “miscarriage of 

justice.” Khattak, 273 F.3d at 562.

 

2 The Government frequently seeks to enforce the appellate waiver by filing a 

motion for summary action under Third Cir. L.A.R. 27.4. See United States v. Goodson, 

544 F.3d 529, 534 n.2 (3d Cir. 2008). Here, the Government sought enforcement in its 

response brief. While this certainly preserved the argument, see id. at 534-35, the

summary enforcement process may have avoided unnecessary briefing concerning the 

merit, or lack thereof, of an appeal.
6

To determine the scope of an appellate waiver contained in a plea agreement, 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 in Vasquez’s plea 

agreement says that any challenge Vasquez raises to the sentence falls within its scope as 

long as the sentence is not greater than the statutory maximum allowable sentence for the 

offense of conviction.

3 Vasquez was convicted of wire fraud in violation of 18 U.S.C. 

§ 1343, which carries a maximum sentence of 20 years’ imprisonment. Thus, any 

challenge Vasquez could raise to his 24-month prison sentence would fall within the 

scope of the appellate waiver. See Corso, 549 F.3d at 927 (strictly construing a similarly 

“broad” appellate waiver in a sentencing appeal). As a result, we agree with counsel that 

challenges to the District Court’s fact-finding and the reasonableness of Vasquez’s 

sentence fall within the scope of the appellate waiver.

Additionally, Vasquez knowingly and voluntarily agreed to the appellate waiver. 

“In determining whether a waiver of appeal is ‘knowing and voluntary,’ the role of the 

 

3 The appellate waiver in Vasquez’s plea agreement states that:

[T]he defendant knowingly waives the right to appeal any sentence within 

the maximum provided in the statute(s) of conviction or the manner in 

which that sentence was determined, on the grounds set forth in Title 18, 

United States Code, Section 3742(a) or on any ground whatever, in 

exchange for the concessions made by the United States in this plea 

agreement. In addition, the defendant expressly waives the right to petition 

under 28 U.S.C. Section 2255 except his right to claim ineffective 

assistance of counsel.

App. 25.
7

sentencing judge is critical.” Khattak, 273 F.3d at 563. We therefore look to a district 

court’s compliance with the requirement that, before accepting a guilty plea containing an 

appellate waiver, a district court must address a defendant in open court and determine 

that he understands the appellate waiver. Fed. R. Crim. P. 11(b)(1)(N); United States v. 

Goodson, 544 F.3d 529, 539-41 (3d Cir. 2008); Corso, 549 F.3d at 928-29. Before 

accepting Vasquez’s guilty plea, the District Court examined Vasquez under oath and 

asked him several questions to ensure that Vasquez was competent to enter the plea, that 

he did so voluntarily, that he read, understood, and reviewed his plea agreement with his 

counsel, had no questions about it, and understood the appellate waiver provision. 

Vasquez responded affirmatively to all of these inquiries, and the colloquy on these 

subjects as well as the entire plea proceeding show that the District Court complied with 

Rule 11.4

Moreover, Vasquez confirmed these oral expressions by having twice affirmed in 

writing that he understood and agreed to the terms of the appellate waiver. Immediately 

above Vasquez’s signature on the plea agreement, the agreement stated that he “enters 

this agreement knowingly, voluntarily, and upon advice of counsel.” App. 26. Vasquez 

also signed and filed an Application for Permission to Enter Plea of Guilty, which 

reiterated the terms of the appellate waiver. Thus, there is no non-frivolous argument that 

Vasquez did not knowingly and voluntarily waive his right to appeal the sentence.

 

4 At sentencing, the District Court again asked questions to ensure that Vasquez 

understood that he waived his right to appeal both the sentence and the manner in which 

it was imposed. 
8

Finally, enforcing the waiver would not work a miscarriage of justice. Though 

Vasquez might have hoped that the District Court would have accepted the factual 

assertions and Guidelines calculations in the plea agreement, it was well within the 

District Court’s discretion to make fact-findings and Guidelines calculations that 

diverged from the stipulations in the plea agreement. United States v. Maurer, 639 F.3d 

72, 81 (3d Cir. 2011) (“[A] sentencing court is not bound by factual stipulations in a plea 

agreement and has discretion to make factual findings based on other relevant 

information.” (citation omitted)). Additionally, Vasquez did not enter the plea agreement 

based on any pretense that the sentencing recommendations contained in the plea 

agreement were binding on the Court. Indeed, the plea agreement stated that the District 

Court was not bound by the factual stipulations or sentencing recommendations 

contained in the agreement, and before accepting the plea, the District Court asked 

Vasquez to confirm that he understood that the District Court had the discretion to give 

him a longer sentence than that recommended in the plea agreement. Furthermore,

because the District Court’s fact-finding and legal conclusions are amply supported, no 

miscarriage of justice is caused by enforcing the appellate waiver.

5

 See United States v. 

 

5 Even if we did not enforce the appellate waiver, we agree with counsel that any 

potential issue Vasquez could raise on appeal would be frivolous. We are satisfied that 

Vasquez’s plea was knowing and voluntary, and, given the evidence adduced at the 

sentencing hearing, there was an adequate basis to support it. 

Moreover, the sentence imposed was reasonable. Although the District Court 

found that the loss to the victim was greater than the amount to which the parties 

stipulated, the District Court was not bound by the plea agreement or its Guidelines 

calculations. See Maurer, 639 F.3d at 81. In addition, the evidence supports its loss 
9

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.”); Khattak, 273 

F.3d at 563 (stating that a miscarriage of justice generally results only where there is 

grave error or error that has a significant effect on the defendant).

 

calculation. In this regard, the Court found that John’s testimony was more credible than 

Vasquez’s since it was more detailed and was based on a “meticulous” and 

contemporaneous ledger reflecting John’s payments to Vasquez, as opposed to Vasquez’s 

unfounded “bald assertion” estimating the loss amount to be between $10,000 and 

$11,000. App. 281. Thus, the District Court’s loss calculation of $27,120 was supported 

by the evidence, and the Court correctly concluded that this loss amount warranted a 

four-level increase to the base offense level. U.S.S.G. § 2B1.1(b)(1)(C) (stating that a 

four level increase to the base offense level applies where the loss amount exceeds 

$15,000). 

The District Court’s application of two other sentencing enhancements was also 

amply supported by law and facts. First, the District Court properly applied United States 

v. Iannone, 184 F.3d 214, 220 (3d Cir. 1999), and found that John was a vulnerable 

victim under U.S.S.G. § 3A1.1(b)(1) because (1) as an undocumented immigrant, John 

was particularly susceptible to Vasquez’s criminal conduct since he had a “strong fear of 

deportation and incarceration,” App. 290-91; (2) in perpetrating the fraud, Vasquez knew 

of John’s particular vulnerabilities and, as the District Court found, “knew exactly which 

buttons to push” to exploit them, App. 296; and (3) it was because of John’s vulnerability 

and fear of deportation and incarceration that Vasquez was able to take advantage of him. 

Second, the District Court correctly found that Vasquez was able to defraud John because 

he pretended to be a police officer and so the “offense involved a misrepresentation that 

the defendant was acting on behalf of a . . . government agency,” warranting an upward 

adjustment under § 2B1.1(b)(9)(A). Based on these enhancements, the District Court 

concluded the applicable range was 18-24 months, and the imposition of a 24-month 

sentence was reasonable and not an abuse of discretion. See United States v. Tomko, 562 

F.3d 558, 567 (3d Cir. 2009) (en banc) (stating that we review a District Court’s 

sentencing decision for abuse of discretion).

Finally, with respect to any claim of ineffective assistance of counsel, we note 

that, except in rare instances, we will address ineffectiveness claims only on collateral 

review, where an evidentiary record can be developed to evaluate such claims. United 

States v. Thornton, 327 F.3d 268, 271-72 (3d Cir. 2003). Nothing in the record calls for 

us to invoke this exception.
10

Thus, we agree with counsel that there is no non-frivolous argument against 

enforcing the appellate waiver because (1) any issue Vasquez could raise on direct appeal 

falls within the scope of the appellate waiver, (2) Vasquez entered into the waiver 

knowingly and voluntarily, and (3) no miscarriage of justice would result from enforcing 

the wavier. We will therefore enforce the waiver and dismiss the appeal.

IV

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

the appeal.

6

 

6 Vasquez 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 also

L.A.R. 35.4; 109.2(b). If Vasquez wishes to pursue these avenues, he must either retain 

counsel or do so pro se. Vasquez should note that a petition for rehearing en banc must 

be filed within 14 days of the entry of judgment; if that time has passed, Vasquez may 

promptly file a motion to enlarge the time for such filing. Counsel shall timely send a 

copy of this Opinion to Vasquez.