United States v. Banks

• Citation: 743 F.3d 56
• Decision Date: 12 February 2014
• Docket Number: No. 13–2094.,13–2094.
• Parties: UNITED STATES of America v. Richard BANKS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

743 F.3d 56

UNITED STATES of America

v.Richard BANKS, Appellant.

No. 13–2094.

United States Court of Appeals, Third Circuit.

Argued Nov. 12, 2013.

Filed: Feb. 12, 2014.

Lori M. Koch, Esq., Julie A. McGrain, Esq. [argued], Office of the Federal Public Defender, Camden, NJ, for Appellant.

Mark E. Coyne, Esq., Office of the United States Attorney Newark, NJ, Glenn J. Moramarco, Esq. [argued], Office of the United States Attorney, Camden, NJ, for Appellee.

Before: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges.

OPINION

NYGAARD, Circuit Judge.

Richard Banks appeals the sentence that resulted from violating the terms of his supervised release by committing bank fraud. He asserts that the appellate waiver in his plea agreement does not apply to the District Court's decision to sentence him to a consecutive term of imprisonment for the supervised release violation. We will affirm.

During Banks' supervised release in 2011 for a bank fraud conviction, police arrested him for conspiring to steal or create more than 75 fraudulent checks in the attempted theft of more than $130,000. Pursuant to a plea agreement, he pleaded guilty to one count of conspiracy to commit bank fraud (18 U.S.C. § 1349), and to violating the conditions of his supervised release. He stipulated that he committed a Grade A violation of his supervised release, and that his total Guidelines offense level was 14 with a Criminal History Category of VI. The plea agreement contained the following language:

The sentence to be imposed upon Richard Banks is within the sole discretion of the sentencing judge, subject to the provisions of the Sentencing Reform Act, 18 U.S.C. § 3551–3742, and the sentencing judge's consideration of the United States Sentencing Guidelines.... The sentencing judge may impose any reasonable sentence up to and including the statutory maximum term of imprisonment and the maximum statutory fine. This office cannot and does not make any representation or promise as to what guideline range may be found by the sentencing judge, or as to what sentenceRichard Banks ultimately will receive.

Plea Agreement § A. It also stated:

The sentencing judge may order that any sentences imposed by the sentencing judge on the violation of 18 U.S.C. § 1349, as described in the Information, and the violation of supervised release as charged in Violation # 1 to the Violation Petition, be served consecutively to each other or to any other sentence Richard Banks may be serving at the time the sentences are imposed pursuant to 18 U.S.C. § 3584 and U.S.S.G. § 7B1.3(f).

Plea Agreement, Section B. Finally, it declared:

Richard Banks knows that he has, and voluntarily waives, the right to file any appeal ... which challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 14 and the sentence for the Violation Petition falls within or below the Guideline range set forth in Paragraphs 10 and 11 above.

Plea Agreement, Schedule A, Paragraph 12.

Between the time of his arrest and guilty plea, Banks cooperated with the Government quite substantially, resulting in a number of convictions. At sentencing, after granting a 6–level downward departure for this cooperation, the District Court imposed a prison term of 18 months for the bank fraud. ¹ It denied his requests for the same downward departure, and for a concurrent term of imprisonment, on the supervised release violation. The District Court ordered 33 months' imprisonment for the violation, to be served consecutively.² Banks now argues that his consecutive sentence is not encompassed in the waiver of his appellate rights.

We exercise plenary review to determine whether Banks' issue falls within the scope of his appellate waiver. United States v. Castro, 704 F.3d 125, 135 (3d Cir.2013). “We decline to exercise jurisdiction over the appeal where [1] the issues on appeal fall within the scope of the waiver and [2] the defendant knowingly and voluntarily agreed to the waiver, unless [3] enforcing the waiver would work a miscarriage of justice.” Id. (quoting United States v. Saferstein, 673 F.3d 237, 242 (3d Cir.2012)(internal quotation marks omitted)). Banks concedes that he knowingly and voluntarily consented to the waiver.

We construe the language of an appellate waiver strictly. United States v. Khattak, 273 F.3d 557, 562 (3d Cir.2001). “[W]e will review the merits of an appeal if the waiver expressly provides specific exceptions under which an appeal may be taken, provided the appeal implicates one of those exceptions.” United States v. Jackson, 523 F.3d 234, 242 (3d Cir.2008). Here, we find no basis for Banks to claim that either party intended to except consecutive sentencing from his broadly inclusive waiver of “any appeal ... which challenges the sentence imposed.” Plea Agreement, Schedule A, Par. 12. To the contrary, Section B of the plea agreement explicitly anticipated that the District Court could impose a consecutive sentence. Moreover, U.S.S.G. § 7B1.3(f) conveys a strong preference for a consecutive sentence in precisely the scenario encountered here. Finally, we must construe the phrase “any appeal ... which challenges the...