2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-28-2011 

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-4148

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w . v i l l a no v a . e du/thir dc ir c uit_2011/155NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No

. 10

- 4148

_____________ UNITED STATES OF AMERICA

v. PAUL WALLACE SANDERS, Appellant

_____________ On A ppeal from the United States District Court for the Western D istrict of Pennsylvania (D.C. Criminal No. 2

- 06

- cr - 00394

- 001 ) District J udge: 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 )

_____________ OPI NION

_____________ 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 w aiver 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 o ne 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 ad justed total offense level of 31 , resulting in an advisory guideline range of 188 to 235 months ’ imprisonment. On November 9, 2007, t he District Court sentenced Sanders to 188 months’ imprisonment and five years’ supervised release. Although Sanders timely filed his notice of app eal 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 t he sentence is procedurally unreasonable because th e District Court failed to address his request for a downward variance from the

c areer 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

necess ary to achiev e the purposes of sentencing.
A s part of his plea agreement , however, Sanders waived his right to appeal his conviction or sentence. We enforce appellate waiver s 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 volunt arily 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 t o 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 un likely that the government would hav e invoked the appellate waiver or, if the waiver had been invoked, that this Court would have enforced it. In support of his assertion th at 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 tw o cases decided around the time this Court should have decided Sanders’s appeal in which the gov ernment did not invoke the defendants’ appe al waiver s . 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 establi sh 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. Sander s 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 its4 general approval of waivers to the broad one

- way waiver at issue here.” ( Id. ) The re is noth ing in our case law , including the cases Sanders cites, that suggest s this Court only recently has enforce d 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 no t have enforced the appeal waiver in this case because of its breadth. On the contrary, the fact that a chall enge to a sentencing guideline calculation did not survive the appeal waiver in
Cors o strongly supports the conclusion that the appeal waiver in t his case , which concerns the District Court’s exercise of discretion in imposing a sentence at the bott om of an unchallenged guideline calculation, would have been enforced in 2008 just as it is being enforced today. Moreover, from our review of the recor d, 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 mi scarriage of justice.” United States v. Jackson , 523 F.3d 234, 244 (3d Cir. 2008). Because the claims that Sanders received a procedurally and substantively unreasona ble sentence do not involve the “ unusual circumstances ” that we have held may merit sett ing aside a valid waiver of appeal to avoid a miscarriage of justice, see id. , we wi ll enforce the appellate waiver contain ed in the plea agreement and will not reach the merits of t he appeal.5 For the foregoing reasons, we will affirm the judgment of the District Court.