2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-16-2011

USA v. Joe Dunston

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1044

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Recommended Citation

"USA v. Joe Dunston" (2011). 2011 Decisions. Paper 1782.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-1044

____________

UNITED STATES OF AMERICA

 v.

JOE DUNSTON,

 Appellant

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 08-cr-00289-1)

District Judge: Honorable Paul S. Diamond

____________

Submitted Under Third Circuit LAR 34.1(a)

November 16, 2010

Before: AMBRO, FISHER and WEIS, Circuit Judges.

(Filed: February 16, 2011)

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Joseph Dunston pleaded guilty to three counts, including conspiracy to commit 

armed bank robbery, armed bank robbery, and carrying a firearm during and in relation to 

a crime of violence. Dunston now appeals, contending that his guilty plea was not 

knowing, voluntary, and intelligent, that his 199-month imprisonment sentence was 
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substantively unreasonable, and that the sentence for the conspiracy count exceeded the 

statutory maximum. We will affirm the District Court with respect to the first two claims 

and, with respect to the third, direct the District Court to enter a sentence that is within 

the statutory maximum.

I.

We write exclusively for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

On July 24, 2008, a grand jury sitting in the United States District Court for the 

Eastern District of Pennsylvania returned an indictment charging Dunston and his codefendants Robert Dales, Dante Toliver, and William Matthews with conspiracy to 

commit armed bank robbery, in violation of 18 U.S.C. § 371, and armed bank robbery, in 

violation of 18 U.S.C. § 2113(d). They were also charged with carrying a firearm during 

and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c).

On February 4, 2009, Dunston entered into a cooperation agreement with the 

government. The agreement provided that Dunston would plead guilty to the three 

charges in the indictment. Further, it explained that the §§ 371 and 2113(d) offenses 

were subject, respectively, to statutory maximums of five years‟ and twenty-five years‟ 

imprisonment and that the § 924(c) offense was subject to a mandatory minimum of 

seven years‟ imprisonment and a maximum of life imprisonment. Dunston also agreed to 

waive his right to appeal or present a collateral challenge to his conviction or sentence, 

except in four circumstances: (1) if the government appealed; (2) if the court sentenced 
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him above the statutory maximum; (3) if the sentencing judge erroneously departed 

upward from the sentencing guidelines; or (4) if the court imposed an unreasonable 

sentence that was above the applicable U.S. Sentencing Commission Guidelines range.

On April 8, 2009, Dunston pleaded guilty to the three charges. At the beginning 

of the colloquy, the District Court asked the following question of Dunston for each of 

the crimes charged: “[A]re you pleading guilty to the crime . . . because you‟re, in fact,

guilty of having committed that crime?” Dunston answered in the affirmative for each of 

the charges. The District Court then advised Dunston as to: the charges against him and 

the elements of each charge; his trial rights; the rights he would forfeit by pleading guilty,

including his waiver of the right to appeal; the sentencing process; and the consequences 

of pleading guilty, including the possible penalties for each count. Dunston stated that he 

fully understood all of this, and at the conclusion of the colloquy, he entered a plea of 

guilty on all counts.

On December 22, 2009, the District Court sentenced Dunston for a total of 199 

months‟ imprisonment for the offenses: 115 months for conspiracy, 115 months for 

armed robbery, and 84 months for carrying a firearm during a crime of violence. The 

115-month sentences were to run concurrently, and the 84-month sentence was to run

consecutively.

Dunston now appeals the validity of his guilty plea, the substantive reasonableness 

of his sentence, and the validity of the imposed sentence for conspiracy.
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II.

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

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. In 

general, “our review of the validity and scope of appellate waivers is plenary.” United 

States v. Corso, 549 F.3d 921, 926 (3d Cir. 2008). However, we review alleged 

violations of Federal Rule of Criminal Procedure 11 for plain error if “a defendant seeks 

to set aside his appellate waiver based on an unpreserved claim that the district court did 

not conduct an adequate colloquy.” Id. at 926-27 (citing United States v. Goodson, 544 

F.3d 529, 539 n.9 (3d Cir. 2008)).

III.

Dunston sets forth three arguments on appeal. First, Dunston argues that his guilty 

plea must be vacated because he did not enter the plea knowingly and voluntarily. Next, 

Dunston contends that the sentence imposed is substantively unreasonable considering 

his criminal history and the disparity between his sentence and another defendant. 

Finally, Dunston alleges that his sentence for criminal conspiracy is illegal and a remand 

is necessary to modify the judgment. We address each argument in turn.

First, Dunston contends that the District Court failed to inform him of the nature 

of the charges against him, the consequences of a conviction, and the constitutional rights 

he waived before pleading guilty. Dunston alleges that the plea colloquy was ineffective 

because it was given after his guilty plea – claiming that his answers to the initial 

questions raised by the District Court amounted to a plea of guilty for all counts. In 

response, the government maintains that the District Court gave the plea colloquy prior to 
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Dunston‟s guilty plea and that his plea was made knowingly and intelligently. The 

government argues that the District Court‟s questions at the beginning of the colloquy 

were appropriate, and Dunston‟s responses did not constitute a guilty plea.

Federal Rule of Criminal Procedure 11(b)(1) requires that, “[b]efore the court 

accepts a plea of guilty[,] . . . the court must address the defendant personally in open 

court” and inform the defendant of his constitutional rights, the mandatory penalties, and 

the nature of the charged offenses. Because Dunston failed to raise an objection in the 

District Court, he must satisfy the plain-error rule. United States v. Vonn, 535 U.S. 55 

(2002); Corso, 549 F.3d at 928. Dunston “must show (1) that there was an error, i.e., a 

deviation from a legal rule, (2) that the error was „plain,‟ i.e., clear or obvious, and 

(3) that the error affected his substantial rights.” Corso, 549 F.3d at 928-29 (citations 

omitted). Additionally, “even if all three conditions are met we will exercise our 

discretion to correct the unpreserved error only if [the Defendant] persuades us that (4) „a 

miscarriage of justice would otherwise result,‟ that is, if „the error seriously affect[ed] the 

fairness, integrity or public reputation of judicial proceedings.” Id. at 929 (citations 

omitted). When analyzing the effect of a Rule 11 error, we may refer to the entire record. 

Id.

The District Court did not err. A review of the record illustrates that Dunston did 

not enter his guilty plea until after the District Court conducted an exhaustive colloquy. 

Before the colloquy, the District Court asked Dunston if the facts recited by the 

prosecutor were correct and if he committed the acts. The District Court was merely 

inquiring into the accuracy of the factual basis of the plea, and Dunston‟s affirmative 
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answers did not amount to the entry of a plea. This came later at the end of the colloquy 

when the District Court asked Dunston how he pleaded to each count, and he responded 

“guilty.” The plea colloquy was adequate because it informed Dunston of both the 

elements and penalties of the offense, as well as the rights that Dunston would be giving 

up by pleading guilty. The initial questions raised by the District Court were for the 

practical purpose of determining the need for a plea colloquy. Therefore, we find that 

Dunston knowingly and voluntarily entered a valid guilty plea.

Second, Dunston argues that the sentence he received was substantively 

unreasonable. We decline to exercise our jurisdiction to review the merits of Dunston‟s 

appeal if we conclude: “(1) that the issues he pursues on appeal fall within the scope of 

his appellate waiver and (2) that he knowingly and voluntarily agreed to the appellate 

waiver, unless (3) enforcing the waiver would work a miscarriage of justice.” Corso, 549 

F.3d at 927. Because Dunston knowingly and voluntarily waived the right to appeal his 

sentence, his claim fails to meet any of the exceptions to the appellate waiver provision, 

and because a within-range sentence of 199 months‟ imprisonment is not a “miscarriage 

of justice,” we decline to review the merits of Dunston‟s substantive reasonableness 

claim.

Third, Dunston and the government agree that the 115-month sentence for the 

conspiracy count is in error because it exceeded the statutory maximum of not more than 

five years‟ imprisonment for an 18 U.S.C. § 371 offense. For this reason, Dunston‟s 

claim falls outside the appellate waiver, and we must direct the District Court to correct 

the sentence. Because the District Court ordered this sentence to run concurrently with 
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the 115-month sentence imposed for violating 18 U.S.C. § 2113(d), which carries a 

statutory maximum of 300 months‟ imprisonment, the error did not result in a greater 

sentence than what would have otherwise been imposed. But because the sentence 

exceeded the statutory maximum, we will direct the District Court to amend its sentence 

in accordance with the statute.

IV.

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

Counts Two and Three: the 18 U.S.C. §§ 2113(d) and 924(c) offenses. However, we will 

remand to the District Court as to Count One, the 18 U.S.C. § 371 conspiracy offense, for 

entry of a sentence to be not more than 60 months‟ imprisonment in accordance with the 

statutory maximum.