U.S. v. Corso

Decision Date15 December 2008
Docket NumberNo. 07-3901.,07-3901.
Citation549 F.3d 921
PartiesUNITED STATES of America v. John D. CORSO, III, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Candace Cain (Argued), Office of Federal Public Defender, Pittsburgh, PA, Attorney for Appellant.

Robert L. Eberhardt, Laura S. Irwin (Argued), Kelly R. Labby, Office of United States Attorney, Pittsburgh, PA, Attorneys for Appellee.

Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Pursuant to a written plea agreement, John D. Corso, III pleaded guilty to one count of theft of mail, in violation of 18 U.S.C. § 1708. The District Court sentenced him to twenty-one months of imprisonment and two years of supervised release. Corso appeals from the District Court's judgment of sentence, arguing that the District Court committed numerous procedural errors in imposing his sentence and that his sentence is substantively unreasonable. Because we conclude that Corso validly waived the right to appeal his sentence, we will affirm.

I.
A.

John Corso worked as a driver for T. Wilson Trucking, a private company that contracted with the United States Postal Service to transport mail along certain "highway contract routes" between Postal Service facilities in Pennsylvania, In January 2005, postal inspectors determined that rifled mail found in a collection box in Aliquippa had come from sources along a contract route handled by Corso. In response, the inspectors placed a "test letter" containing cash in a bundle of first-class mail to be transported by Corso to a processing and distribution center in Pittsburgh.

The inspectors covertly watched Corso collect the bundle containing the test letter, but by the time he unloaded his cargo in Pittsburgh the test letter was missing. After stopping Corso before he could leave the distribution center, the inspectors found the test letter, as well as four other stolen letters, in the cab of his truck. When confronted, Corso first denied any wrongdoing, but eventually admitted that he had stolen mail on three or four occasions and that he had taken between five and twenty-five pieces of mail each time.

B.
1.

On November 8, 2006, an indictment was returned in the Western District of Pennsylvania charging Corso with five counts of theft of mail in violation of 18 U.S.C. § 1708, one count for each of the letters found in the cab of his truck. After initially pleading not guilty, Corso eventually entered into a plea agreement with the government. In the agreement, Corso agreed to plead guilty to Count One of the indictment, acknowledged his responsibility for the conduct charged in the remaining four counts, and stipulated that the District Court could consider the conduct charged in those four counts in imposing sentence. In exchange for Corso's guilty plea, the government agreed to move to dismiss the remaining four counts against him and to recommend a two-level reduction in offense level for acceptance of responsibility under § 3E1.1 of the United States Sentencing Guidelines. The parties made a non-binding stipulation that the total loss resulting from the offense was $300.00 and agreed that Corso faced a maximum term of imprisonment of five years and a maximum term of supervised release of three years.

The plea agreement also contained an appellate-waiver provision, which read as follows:

"8. John D. Corso, III waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:

(a) If the United States appeals from the sentence, John D. Corso, III may take a direct appeal from the sentence.

(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, John D. Corso, III may take a direct appeal from the sentence.

John D. Corso, III further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any collateral proceeding attacking his conviction or sentence."

Corso and his attorney signed the plea agreement. By signing, Corso acknowledged that he had read the agreement, had discussed it with his attorney, and had accepted it.

2.

On June 1, 2007, the District Court held a change-of-plea hearing, during which it engaged Corso in a colloquy intended to ensure that he was knowingly and voluntarily entering his guilty plea and that he understood the contents of his plea agreement, as required by Federal Rule of Criminal Procedure 11(b). After placing Corso under oath, the District Court reviewed with him the rights incident to pleading not guilty and assured itself that Corso understood that, by changing his plea to guilty, he was giving up those rights. The District Court also confirmed that Corso was satisfied with the legal representation he had received, that he had not been threatened or otherwise coerced into pleading guilty, and that he understood the charges against him, the maximum penalties that could be imposed, and that the District Court was "not obligated to sentence [him] within the guideline range" because the Sentencing Guidelines "are not mandatory on [the court]."

At the District Court's request, the prosecutor "outlined" the substance of the plea agreement. But the prosecutor made only one brief allusion to the agreement's appellate-waiver provision, mentioning that the agreement contained "the standard language regarding waiver of appeal in that it sets forth the only exceptions to it." The District Court declined to expand on the prosecutor's synopsis, and at no point in the colloquy did it explain to Corso the implications of the appellate-waiver provision or inquire if he understood that he was waiving his right to appeal.

Following the colloquy, Corso pleaded guilty to one count of mail fraud. The District Court accepted Corso's guilty plea, finding that Corso was competent and capable of entering an informed plea and that he was knowingly and voluntarily pleading guilty.

3.

After the District Court accepted Corso's guilty plea, the United States Probation Office prepared a presentence report (PSR) using the November 2006 Sentencing Guidelines. Beginning with a base offense level of 6 under Guidelines § 2B1.1, the Probation Office recommended a four-level enhancement under § 2B1.1(b)(2)(B) for an offense involving between 50 and 250 victims, a two-level enhancement under § 3B1.3 for abuse of a position of trust, and a two-level reduction under § 3E1.1 for acceptance of responsibility. The resulting total offense level of 10, combined with Corso's criminal history category of V, yielded an advisory Guidelines range of twenty-one to twenty-seven months of imprisonment.

On September 7, 2007, the District Court held a sentencing hearing, at which Corso objected to both of the PSR's recommended sentencing enhancements. Corso objected to the number-of-victims enhancement on the grounds that his offense did not involve fifty or more victims (because the stipulated total loss was $300) and that the Probation Office erroneously relied on the "special rule" described in Application Note 4(C)(ii)(I) to § 2B1.1 to justify presuming the contrary.1 The special rule was inapplicable, Corso argued, because the delivery truck involved in his offense belonged to T. Wilson Trucking, not the United States Postal Service, and thus was not a "Postal Service delivery vehicle" within the meaning of the application note. Corso objected to the abuse-of-trust enhancement on a similar ground, arguing that he was an employee of a private trucking company, not of the Postal Service, and, as such, was not in a position of trust as contemplated by § 3B1.3.

The District Court rejected Corso's arguments and, again emphasizing that it understood that the Guidelines were advisory in nature, accepted the PSR's recommendations, including the proposed enhancements and Guidelines range. After reviewing the sentencing factors set forth in 18 U.S.C. § 3553(a) and hearing the parties' arguments, the District Court sentenced Corso to twenty-one months of imprisonment and two years of supervised release. It explained that Corso's "personal circumstances" were "simply not different enough to warrant a sentence different from that recommended by the guidelines" and that, "[i]n the Court's view, the sentence will adequately address the sentenc[ing] goals of punishment, rehabilitation and deterrence." It then told Corso the following:

"Sir, you have a right to appeal this sentence. If you want to appeal this sentence, you must do so within ten days. If you cannot afford the costs of appeal, you may apply for leave to appeal in forma pauperis. If you cannot afford an attorney, I'll appoint one to represent you free of charge. Do you understand what your appeal rights are?"

Corso responded in the affirmative, and the government did not object to, or otherwise attempt to correct, the District Court's statement.

Corso filed a timely notice of appeal, challenging his sentence. On appeal, Corso argues that the District Court committed procedural error by (1) erroneously applying the number-of-victims and abuse-of-trust enhancements in calculating his Guidelines range, (2) treating the Guidelines as mandatory, and (3) failing to adequately consider the § 3553(a) sentencing factors. He also contends that his sentence is substantively unreasonable in light of the § 3553(a) factors.

The government argues that Corso's appeal is barred by the appellate-waiver provision contained in his plea agreement. Corso responds that the waiver is inapplicable to this appeal because his grounds for appeal fall within one of the waiver's exceptions. He also maintains that he did not knowingly and voluntarily agree to the waiver because the District Court failed...

To continue reading

Request your trial
111 cases
  • United States v. Erwin
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 Agosto 2014
    ...... See United States v. Corso, 549 F.3d 921, 931 (3d Cir.2008) (“[A]llow[ing] alleged errors         [765 F.3d 228] ...That authority can be found in 28 U.S.C. § 2106, which permits us to modify, vacate, set aside, or reverse any judgment “lawfully brought before [us]” for ......
  • United States v. Payano, 18-1153
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 10 Julio 2019
    ......2052 ; Bagley , 473 U.S. at 682, 105 S.Ct. 3375 ); accord United States v. Corso , 549 F.3d 921, 929-30 (3d Cir. 2008) (same). 5 Here, then, Payano must show that but for the ...Thus, we turn to the next question before us: whether, on this sentencing record, the possibility of a lesser sentence absent the ......
  • United States v. Calabretta
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 Julio 2016
    ......The case was remanded to us by the Supreme Court to be considered further in light of Chambers v. United States , 555 U.S. ...Corso , 549 F.3d 921, 931 (3d Cir.2008) (quoting United States v. Young , 470 U.S. 1, 15, 105 S.Ct. ......
  • United States v. Quinn
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 14 Agosto 2013
    ......3. Judicial Use Immunity and Kastigar         Quinn urges us to uphold judicial use immunity, arguing that courts do not need authority to “grant” immunity. ...Corso, 549 F.3d 921, 929 (3d Cir.2008) (internal quotation marks and alteration omitted). A. Refusal to ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT