2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-27-2012

USA v. Gregory Ladner

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4549

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Recommended Citation

"USA v. Gregory Ladner" (2012). 2012 Decisions. Paper 825.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4549

_____________

UNITED STATES OF AMERICA

v.

GREGORY LADNER,

 Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2:06-cr-00224-001)

District Judge: Honorable James Knoll Gardner

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 26, 2012

____________

Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

(Filed: June 27, 2012)

____________

OPINION 

___________

CHAGARES, Circuit Judge.

Gregory Ladner appeals his fourteen-month sentence on the grounds that the 

District Court impermissibly relied on an uncorroborated police report from the 

Philippines in imposing a sentence at the high end of the advisory United States 

Sentencing Guidelines range. We will affirm the District Court‟s sentence. 
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I.

We write solely for the parties‟ benefit and, as such, we set forth only the facts 

essential to our disposition. This criminal action arose out of Ladner‟s July 2005 

conviction in the United States District Court for the Eastern District of Pennsylvania for 

making false statements to a federal firearms licensee. In January 2006, Ladner was 

sentenced to eighteen months of imprisonment for that offense. The sentencing judge 

allowed Ladner to remain free on bail on the condition that he surrender for service of his 

sentence on February 9, 2006. Instead, Ladner applied for a new passport by falsely 

claiming that he had lost his previous passport and fled to the Philippines. Ladner was 

captured in the Philippines in May 2009 after a woman filed a police report claiming that 

Ladner sexually abused her. In the ensuing investigation, the Philippine police officers

discovered that Ladner was wanted in the United States and helped to arrange for his 

deportation to California, where he made an initial appearance in federal court.

Meanwhile, on October 3, 2006, a grand jury in the Eastern District of 

Pennsylvania returned a superseding indictment charging Ladner with failure to surrender 

for service of sentence, in violation of 18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(ii), giving a 

false statement in an application and use of a passport, in violation of 18 U.S.C. § 1542, 

and escape, in violation of 18 U.S.C. § 751(a). After he was transported back to 

Pennsylvania from California, Ladner entered into a plea agreement in which he agreed 

to plead guilty to failure to surrender for service of sentence and the Government agreed

to dismiss the other two charges. The plea agreement included a waiver of right to 

appeal, subject to limited exceptions. 
3

On August 16, 2010, the District Court sentenced Ladner to fourteen months of

imprisonment. The Court agreed with the parties that the base offense level for Ladner‟s 

conviction was nine and he was in criminal history category three. The advisory 

Sentencing Guidelines range was, therefore, eight to fourteen months. Both parties 

sought a sentence within that range and neither party argued for either the higher or lower 

end of that range. Ladner‟s one objection to the Pre-Sentence Report related to the 

Philippine police report. He argued that the District Court should not consider the report 

because it was uncorroborated and unreliable hearsay. The District Court overruled 

Ladner‟s objection and considered the Philippine police report because it demonstrated 

that Ladner had been apprehended in the Philippines rather than surrendering on his own. 

Ladner timely appealed his sentence, maintaining that the District Court erred in 

overruling his objection and considering the Philippine police report because the 

Government failed to establish that the report was reliable. In response, the Government

asserts that (1) Ladner‟s argument falls within the scope of the waiver of appeal in his 

plea agreement, and (2) Ladner‟s argument is without merit because the District Court 

did not impermissibly rely on the police report in making its sentencing determination.

II.

The District Court had subject matter jurisdiction over this criminal action 

pursuant to 18 U.S.C. § 3231 and we have jurisdiction over the appeal pursuant to 28 

U.S.C. § 1291 and 18 U.S.C. § 3742. “We exercise plenary review in deciding whether 

an issue raised by a defendant falls within the scope of an appellate waiver in his plea 

agreement.” United States v. Goodson, 544 F.3d 529, 537 n.6 (3d Cir. 2008). An 
4

appellate waiver does not divest this Court of subject matter jurisdiction. Instead, if we 

conclude that the waiver is enforceable, we will affirm the judgment of the District Court 

unless it would result in a miscarriage of justice. United States v. Gwinnett, 483 F.3d 

200, 203, 206 (3d Cir. 2007). 

When the Government invokes a waiver of the right to appeal, we consider three 

elements: 

(1) whether the waiver of the right to appeal h[is] sentence was knowing 

and voluntary; (2) whether one of the specific exceptions set forth in the 

agreement prevents the enforcement of the waiver; i.e., what is the scope of 

the waiver and does it bar appellate review of the issue pressed by the 

defendant; and (3) whether enforcing the waiver would work a miscarriage 

of justice.

Goodson, 544 F.3d at 536 (quotation marks omitted). An error amounts to a miscarriage 

of justice only in “unusual circumstance[s.]” United States v. Khattak, 273 F.3d 557, 562 

(3d Cir. 2001). The miscarriage of justice determination depends on factors such as 

[T]he clarity of the error, its 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.

Id. at 563 (quotation marks omitted). This Court has explained that the miscarriage of 

justice exception to a waiver of appeal is extremely narrow: 

A waiver of the right to appeal includes a waiver of the right to appeal 

difficult or debatable legal issues – indeed, it includes a waiver of the right 

to appeal blatant error. Waiver would be nearly meaningless if it included 

only those appeals that border on the frivolous. . . . While it may appear 

unjust to allow criminal defendants to bargain away meritorious appeals, 

such is the necessary consequence of a system in which the right to appeal 

may be freely traded.

Id. at 562 (quotation marks omitted). 
5

Ladner‟s plea agreement contained the following waiver of appeal:

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 to 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.

a. Notwithstanding the waiver provision above, if the government 

appeals from the sentence, then the defendant may file a direct 

appeal of his sentence.

b. If the government does not appeal, then notwithstanding the waiver 

provision set forth in this paragraph, the defendant may file a direct 

appeal but may raise only claims that:

(1) the defendant‟s sentence on any count of conviction exceeds 

the statutory maximum for that count as set forth in paragraph 

4 above;

(2) the sentencing judge erroneously departed upward pursuant to 

the Sentencing Guidelines;

(3) the sentencing judge, exercising the Court‟s discretion 

pursuant to United States v. Booker, 125 S. Ct. 738 (2005), 

imposed an unreasonable sentence above the final Sentencing 

Guideline range determined by the Court.

Supplemental Appendix (“SA”) 152–53. 

It is evident that Ladner‟s waiver was knowing and voluntary. During the plea 

colloquy, the District Court explained the appellate rights that Ladner was waiving and 

asked six times whether Ladner understood the waiver. Ladner said yes each time. The

District Court also verified that the plea agreement had been fully explained to Ladner 

and that he had had an opportunity to discuss it with counsel. The District Court 
6

concluded that Ladner‟s plea was knowing and voluntary and that he was alert, 

competent, and capable of entering an informed plea. Ladner does not dispute those 

findings.

The Government asserts that none of the exceptions to the waiver apply here. 

While that is correct and Ladner has not argued otherwise, the waiver provides that it “is 

not intended to bar the assertion of constitutional claims that the relevant case law holds 

cannot be waived.” Ladner argues that the District Court violated his right to due process 

by considering unreliable evidence in sentencing. See Roberts v. United States, 445 U.S. 

552, 556 (1980) (“We have, however, sustained due process objections to sentences 

imposed on the basis of misinformation of constitutional magnitude.” (quotation marks 

omitted)); United States v. Williams, 668 F.2d 1064, 1072 (9th Cir. 1981) (“Where, 

however, the trial judge relies on materially false or unreliable information, there is a 

violation of defendant‟s due process rights.”); Moore v. United States, 571 F.2d 179, 183

n.7, 184 (3d Cir. 1978) (“In view of the due process limitation on the use by a sentencing 

judge of false information about a defendant, Moore maintains that he has a right to have 

his sentence vacated.”). 

The case law is sparse as to what constitutes a constitutional claim that cannot be 

waived. It seems, however, that the exception for non-waivable constitutional claims is

subsumed by the miscarriage of justice exception to the enforceability of a waiver. See

Gwinnett, 483 F.3d at 203 (“[A] sentence based on constitutionally impermissible 

criteria, such as race, or a sentence in excess of the statutory maximum sentence for the 

defendant‟s crime, can be challenged on appeal even if the defendant executed a blanket 
7

waiver of his appeal rights.” (quotation marks omitted)); United States v. Brown, 232 

F.3d 399, 403 (4th Cir. 2000) (relating that a defendant may appeal a sentence despite a 

waiver of appeal if the sentence was “(1) imposed in excess of the maximum penalty 

provided by law or (2) based on a constitutionally impermissible factor such as race.”).

We conclude that no miscarriage of justice would result from enforcement of the 

waiver because Ladner‟s due process claim is meritless. See Khattak, 273 F.3d at 562. 

Congress has provided that:

No limitation shall be placed on the information concerning the 

background, character, and conduct of a person convicted of an offense 

which a court of the United States may receive and consider for the purpose 

of imposing an appropriate sentence.

18 U.S.C. § 3661. Notwithstanding that broad latitude, the information relied upon at 

sentencing must have “„sufficient indicia of reliability to support its probable accuracy.‟” 

United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009) (quoting United States v. 

Warren, 186 F.3d 358, 364-65 (3d Cir. 1999)). The Supreme Court has instructed that, 

generally, facts that are relied upon to increase a sentence must be proved by a 

preponderance of the evidence. United States v. Watts, 519 U.S. 148, 156 (1997).

Ladner argues that the District Court may have impermissibly considered the 

details of his alleged arrest in the Philippines as part of its decision to sentence him to the 

high end of the Sentencing Guidelines range, and that such reliance was a due process 

violation because the police report was uncorroborated and unreliable. The record, 

however, demonstrates that the District Court did not consider the details of the police 

report in its sentencing decision. In response to Ladner‟s objection in the Pre-Sentence 
8

Report, the District Court held that the Philippine police report was relevant because it 

demonstrated that Ladner had been apprehended in the Philippines rather than 

surrendering on his own. The Court concluded that Ladner‟s decision not to surrender 

“may be pertinent and relevant to consider imposing a sentence at the upper end of the 

guideline range or an upward guideline departure or a variance upwards from the 

guidelines.” Appendix (“App.”) 38. The Court asserted that it would “give this 

information some probative value, some relevance. I acknowledge that it has a certain 

danger of unfair prejudice. I don‟t think it presents a danger of unfair prejudice, because 

I‟m not going to be inflamed by it and I‟m not.” App. 41. 

The Court then delivered a detailed explanation for its sentence. In particular, the 

Court explained that the sentence was appropriate in light of Ladner‟s violent criminal 

history that was not taken into account by the Sentencing Guidelines because his prior 

convictions for manslaughter, assault, and weapons violations were too old to affect his 

criminal history category. The Court also asserted that the sentence reflected the 

seriousness of the offense, would have the appropriate deterrence effect on possible 

future offenders, and would provide Ladner with “needed educational or vocational 

training, medical care or other correctional treatment in the most effective manner.” SA 

121. The Court referenced Ladner‟s arrest in the Philippines only once, saying: “The 

defendant was a fugitive for almost four years. He appears to have done nothing 

[productive] with his time in [the] Philippines and [the] details surrounding his capture 

are sordid.” SA 117. 
9

It is manifest that the District Court did not factor the lurid details of Ladner‟s 

Philippines arrest into its sentencing decision. To the contrary, the Court explicitly stated 

that the police report was probative only to show that Ladner had not voluntarily 

surrendered himself. Thus, this case is distinguishable from the case Ladner relies upon, 

United States v. Berry, 553 F.3d 273. In Berry, the District Court opined that the 

defendants‟ criminal history points did not adequately reflect their criminal history 

because of prior arrests that had not resulted in prosecutions. Id. at 279. Unlike in this 

case, the District Court in Berry expressly stated that it was considering the arrests in its 

sentencing determination.

In the absence of any indication in the record that the District Court relied on the 

uncorroborated details of the Philippine police report at sentencing, we hold that Ladner‟s 

due process argument lacks merit. Therefore, based on the factors set forth in Khattak, 

enforcement of the waiver in Ladner‟s plea agreement will not result in a miscarriage of 

justice. 

III.

Having concluded that Ladner‟s waiver of the right to appeal is enforceable and 

that Ladner‟s claim falls within the scope of the waiver, we will affirm the judgment and 

sentence of the District Court.