2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-28-2011

USA v. Sanders

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4148

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Recommended Citation

"USA v. Sanders" (2011). 2011 Decisions. Paper 155.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4148

_____________

UNITED STATES OF AMERICA

v.

PAUL WALLACE SANDERS, 

Appellant

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2-06-cr-00394-001)

District Judge: Hon. Terrence F. McVerry

_____________

Submitted Under Third Circuit LAR 34.1(a)

October 26, 2011

Before: FISHER, VANASKIE, and ROTH Circuit Judges

(Filed: November 28, 2011)

_____________

OPINION

_____________

VANASKIE, Circuit Judge.

Paul Wallace Sanders appeals his 188-month sentence following a guilty plea to 

one count of distribution of five or more grams of cocaine base in violation of 21 U.S.C. 
2

§ 841(a)(1). We will enforce Sanders’s waiver of his appellate rights and affirm the 

District Court’s judgment.1

Because we write primarily for the parties, we assume familiarity with the case 

and discuss only those facts necessary to our decision. On July 13, 2007, Sanders 

pleaded guilty to one count charging him with distributing more than five grams of 

cocaine base in violation of 21 U.S.C. § 841(a)(1). The District Court determined that 

Sanders was a career offender with a criminal history category of VI and an adjusted total 

offense level of 31, resulting in an advisory guideline range of 188 to 235 months’ 

imprisonment. On November 9, 2007, the District Court sentenced Sanders to 188 

months’ imprisonment and five years’ supervised release. Although Sanders timely filed 

his notice of appeal on November 18, 2007, it was not received by this Court until 

October 2010.

Sanders argues that his 188-month sentence must be vacated as procedurally and 

substantively unreasonable. He claims that the sentence is procedurally unreasonable 

because the District Court failed to address his request for a downward variance from the 

career offender guideline range based on the 18 U.S.C. § 3553(a) factors. He further 

contends that the sentence is substantively unreasonable because it is greater than 

necessary to achieve the purposes of sentencing.

As part of his plea agreement, however, Sanders waived his right to appeal his 

conviction or sentence. We enforce appellate waivers that are entered into knowingly 

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

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3

and voluntarily, unless enforcement would work a miscarriage of justice. United States v. 

Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). Sanders does not claim, nor does the record 

suggest, that he did not knowingly and voluntarily waive his right to appeal. Sanders, 

instead, argues that enforcement of the appellate waiver would work a miscarriage of 

justice.

Sanders does not tether his argument that enforcement of the waiver will work a 

miscarriage of justice to his claims of sentencing error. Rather, he bases his argument on 

the assertion that, had the resolution of his appeal not been delayed due to no fault of his 

own, it is unlikely that the government would have invoked the appellate waiver or, if the 

waiver had been invoked, that this Court would have enforced it.

In support of his assertion that at the time he filed his notice of appeal, “the 

government was not consistently invoking appellate waivers” (Sanders’s Reply Br. at 9), 

Sanders cites but two cases decided around the time this Court should have decided 

Sanders’s appeal in which the government did not invoke the defendants’ appeal waivers. 

This showing is both insufficient and irrelevant. First, it is sheer speculation that the 

government would not have invoked the appeal waiver in this case in 2008. Two cases 

certainly do not establish a practice of foregoing enforcement of appeal waivers. And 

second, the fact of the matter is that the government has sought to enforce the appeal 

waiver in this matter, thus squarely presenting us with the question of whether it is 

enforceable.

Sanders also contends that at the time that his appeal would have been decided in 

the ordinary course of this Court’s proceeding, “this Circuit had not yet expanded its 
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general approval of waivers to the broad one-way waiver at issue here.” (Id.) There is 

nothing in our case law, including the cases Sanders cites, that suggests this Court only 

recently has enforced broad appellate waivers. And Sanders recognizes that in United 

States v. Corso, 549 F.3d 921 (3d Cir. 2008), we enforced a broad appeal waiver that was 

materially indistinguishable from that presented here. Significantly, the appeal in Corso 

was filed on September 28, 2007, approximately two months before Sanders filed his 

notice of appeal. Accordingly, it cannot be credibly argued that we would not have 

enforced the appeal waiver in this case because of its breadth. On the contrary, the fact 

that a challenge to a sentencing guideline calculation did not survive the appeal waiver in 

Corso strongly supports the conclusion that the appeal waiver in this case, which 

concerns the District Court’s exercise of discretion in imposing a sentence at the bottom 

of an unchallenged guideline calculation, would have been enforced in 2008 just as it is 

being enforced today.

Moreover, from our review of the record, Sanders’s sentencing challenges would 

not support a finding of a miscarriage of justice. Indeed, “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.” United States v. Jackson, 523 

F.3d 234, 244 (3d Cir. 2008). Because the claims that Sanders received a procedurally 

and substantively unreasonable sentence do not involve the “unusual circumstances” that 

we have held may merit setting aside a valid waiver of appeal to avoid a miscarriage of 

justice, see id., we will enforce the appellate waiver contained in the plea agreement and 

will not reach the merits of the appeal.
5

For the foregoing reasons, we will affirm the judgment of the District Court.