United States v. Phi Xin ( 2011 )


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  •                                                                NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    __________
    No. 09-2415
    __________
    UNITED STATES OF AMERICA
    v.
    PHI XIN,
    Appellant
    __________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 2-06-cr-00585-006)
    District Judge: Hon. Joan Carr
    __________
    Submitted under Third Circuit LAR 34.1(a)
    October 27, 2011
    Before: SLOVITER, GREENAWAY, JR. and ALDISERT, Circuit Judges.
    (Filed: October 28, 2011)
    __________
    OPINION OF THE COURT
    __________
    ALDISERT, Circuit Judge.
    Appellant, Phi Xin, appeals from an order of the District Court of the Eastern
    District of Pennsylvania, sentencing him to 72 months‟ imprisonment after pleading
    guilty. Appellant contends that the District Court: (1) erred in denying him a minor role
    reduction pursuant to U.S.S.G. § 3B1.2; (2) abused its discretion by weighing the 
    18 U.S.C. § 3553
    (a) factors in a way that yielded an unreasonable sentence; and (3) failed to
    meaningfully consider the need to avoid the unwarranted sentence disparity pursuant to
    
    18 U.S.C. § 3553
    (a)(6). Although Appellant did not discuss how the waiver of appeal he
    signed in his plea agreement should apply, we hold that the waiver provision in the plea
    agreement, to which Appellant knowingly and voluntarily agreed, is enforceable. We will
    therefore affirm the District Court‟s order.
    I.
    Because we write primarily for the parties, we recount only the essential facts and
    procedural history. On December 27, 2007, a grand jury returned a second superseding
    indictment charging Phi Xin and two other individuals, William Van Nguyen and Lam
    Ta, with various drug trafficking offenses. Appellant was charged with one count of
    conspiracy to distribute MDMA (“ecstasy”), in violation of 
    21 U.S.C. § 846
     (Count 1),
    and three counts of distribution of ecstasy, in violation of 
    21 U.S.C. § 841
    (a)(1) (Counts
    6, 7 and 8). On January 30, 2009, Appellant pleaded guilty to all four counts pursuant to a
    written plea agreement with the government. Appellant‟s plea agreement provided:
    In exchange for the undertakings made by the government in entering this
    plea agreement, the defendant voluntarily and expressly waives all rights to
    appeal or collaterally attack the defendant‟s conviction, sentence, or any
    other matter relating to this prosecution, whether such a right to appeal or
    collateral attack arises under 
    18 U.S.C. § 3742
    , 
    28 U.S.C. § 1291
    , 
    28 U.S.C. § 2255
    , or any other provision of law. This waiver is not intended to
    bar the assertion of constitutional claims that the relevant case law holds
    cannot be waived.
    a. Notwithstanding the waiver provision above, if the government appeals
    from the sentence, then the defendant may file a direct appeal of his
    sentence.
    2
    b. If the government does not appeal, then notwithstanding the waiver
    provision set forth in this paragraph, the defendant may file a direct
    appeal but may raise only claims that:
    (1) the defendant‟s sentence on any count of conviction exceeds the
    statutory maximum for that count as set forth in paragraph 5 above;
    (2) the sentencing judge erroneously departed upward pursuant to the
    Sentencing Guidelines; and/or
    (3) the sentencing judge, exercising the Court‟s discretion pursuant to
    United States v. Booker, 
    543 U.S. 220
     (2005), imposed an
    unreasonable sentence above the final Sentencing Guideline range
    determined by the Court.
    Supp. App. 30-31. On April 28, 2009, the District Court imposed a within-Guidelines
    range sentence of 72 months‟ imprisonment, a term of supervised release of three years, a
    fine of $2,000, and a special assessment of $400. Phi Xin filed a timely appeal.
    The District Court had jurisdiction pursuant to 
    18 U.S.C. § 3231
    . We have
    jurisdiction under 
    28 U.S.C. § 1291
     to review the final judgment of the District Court, as
    well as under 
    18 U.S.C. § 3742
    (a) to review the sentence imposed on Appellant. We
    exercise plenary review of the legality of appellate waivers. See United States v. Khattak,
    
    273 F.3d 557
    , 560 (3d Cir. 2001). We also exercise plenary review of an interpretation of
    the Sentencing Guidelines. See United States v. Grier, 
    475 F.3d 556
    , 570 (3d Cir. 2007)
    (en banc). We review the District Court‟s sentence itself for abuse of discretion, see Gall
    v. United States, 
    552 U.S. 38
    , 46 (2007), and its factual findings for clear error. See
    Grier, 
    475 F.3d at 570
    .
    II.
    Appellant does not claim that he misunderstood his waiver. Nor does he challenge
    the language of his plea agreement that plainly waives his ability to appeal. Appellant
    ignores the appellate waiver provision in his plea agreement altogether, contending
    merely that his sentence was procedurally flawed and substantively unreasonable.
    Because the record demonstrates that Phi Xin knowingly and voluntarily waived his
    3
    appellate rights, we will enforce the appellate waiver and decline to review Appellant‟s
    challenge to his sentence.1
    A.
    In Khattak, we held that waivers of appeal must be strictly construed but are,
    nonetheless, valid so long as entered into knowingly and voluntarily. Such waivers
    extend to meritorious claims. See 
    273 F.3d at 561-562
    ; see also United States v. Lockett,
    
    406 F.3d 207
    , 212-213 (3d Cir. 2005) (holding that an appellate waiver in plea agreement
    forecloses presentation of meritorious claim). Where a defendant has entered a knowing
    and voluntary waiver, we will enforce the waiver and affirm the judgment unless doing
    so “would work a miscarriage of justice.” United States v. Gwinnett, 
    483 F.3d 200
    , 203
    (3d Cir. 2007).
    Although Khattak declined to provide a definitive list of situations that amount to
    a “miscarriage of justice,” we have endorsed the approach of our sister Courts of
    Appeals, which suggest that only extraordinary situations suffice. See, e.g., United States
    1
    Even if Appellant had not agreed to the appellate waiver, we would still affirm the
    sentence. First, a district court‟s factual findings are not clearly erroneous unless they are
    “„completely devoid of a credible evidentiary basis or bear[] no rational relationship to
    the supporting data.‟” United States v. Haut, 
    107 F.3d 213
    , 218 (3d Cir. 1997) (quoting
    Am. Home Prods. Corp. v. Barr Labs., Inc., 
    834 F.2d 368
    , 370-371 (3d Cir. 1987)). Here,
    although the District Court recognized that Appellant was less culpable than the other
    participants in the Lien Dam drug organization, it noted that he had a “multifaceted” role,
    acting as a “customer, a courier, and a payment collector.” App. 13, 22, 38. This finding
    was supported by the evidence. Second, a sentencing court need not make findings as to
    each § 3553(a) factor if the record makes clear that the court took the factors into
    account. See United States v. Lessner, 
    498 F.3d 185
    , 203 (3d Cir. 2007). There is no
    question that the District Court considered Appellant‟s request for leniency based upon
    his personal history and characteristics: the District Court questioned Appellant about his
    educational efforts, work history, and personal life, among other topics, during the
    hearing. Finally, the District Court was permitted, but not required, to equate the
    sentences imposed on codefendants in the same case. See United States v. Parker, 
    462 F.3d 273
    , 277 (3d Cir. 2006).
    4
    v. Brown, 
    232 F.3d 399
    , 403 (4th Cir. 2000) (stating there may be a miscarriage of justice
    if the sentence was (1) imposed in excess of the maximum penalty provided by law or (2)
    based on a constitutionally impermissible factor such as race); United States v. Joiner,
    
    183 F.3d 635
    , 645 (7th Cir. 1999) (explaining there may be a miscarriage of justice if the
    plea agreement was the product of ineffective assistance of counsel). We have embraced
    the view that a reviewing court should evaluate appellate waivers on a case-by-case basis,
    considering the error claimed by the defendant and such factors as:
    [T]he clarity of the error, its gravity, its character (e.g., whether it
    concerns a fact issue, a sentencing guideline, or a statutory maximum),
    the impact of the error on the defendant, the impact of correcting the
    error on the government, and the extent to which the defendant
    acquiesced in the result.
    Khattack, 
    273 F.3d at 563
     (quoting United States v. Teeter, 
    257 F.3d 14
    , 25-26 (1st Cir.
    2001)).
    As explained above, Appellant entered a valid guilty plea and voluntarily waived
    his right to appeal. Appellant contends, however, that the District Court improperly
    denied his request for a downward adjustment for his role in the offense. He also
    contends that the within-Guidelines range sentence was unreasonable because the District
    Court failed to give adequate weight to his background and characteristics, and because it
    exceeded the sentence imposed on Appellant‟s more culpable codefendant. Even if
    meritorious, none of these claims constitutes a miscarriage of justice. Enforcement of the
    waiver is, therefore, appropriate.
    1.
    Appellant‟s contention that the District Court erred in failing to grant a reduction
    cannot support a finding of a miscarriage of justice. We set a justifiably high bar for such
    claims, and Appellant‟s contentions do not come close to clearing it. See United States v.
    5
    Corso, 
    549 F.3d 921
    , 931 (3d Cir. 2008) (concluding that an erroneous application of
    enhancements did not constitute a miscarriage of justice). In Corso, we held that
    “procedural errors of this nature cannot justify setting aside an appellate waiver because
    „allow[ing] [such] errors . . . to render a waiver unlawful would nullify the waiver based
    on the very sort of claim it was intended to waive.‟” 
    Id.
     (citation omitted). Indeed, we
    recently held that even a four-level upward enhancement for the defendant‟s role in the
    offense could not constitute a miscarriage of justice. See United States v. Ahmad, 325
    Fed. App‟x 149, 153 (3d Cir. 2009); see also United States v. McKoy, 350 F. App‟x 732,
    736-737 (3d Cir. 2009) (holding that a district court‟s inadequate explanation for
    rejecting a defendant‟s proposed alternative criminal status was not a miscarriage of
    justice). Simply put, Appellant‟s contention that the District Court erred in failing to
    grant a reduction does not constitute a miscarriage of justice. See United States v.
    Cassese, 337 Fed. App‟x 201, 207 (3d Cir. 2009) (holding that an allegation that a
    within-Guidelines range sentence was procedurally deficient could not constitute a
    miscarriage of justice).
    2.
    Appellant‟s second contention that the within-Guidelines range sentence was
    unreasonable is also insufficient to support a finding of manifest injustice. The Supreme
    Court has held that an appellate court may presume that a within-Guidelines sentence is
    reasonable. See Rita v. United States, 
    551 U.S. 338
    , 347 (2007). Because such a sentence
    is presumptively reasonable, therefore, it is logically inconceivable that such a sentence
    could constitute a miscarriage of justice. We suggested as much in United States v.
    Jackson, 
    523 F.3d 234
    , 234-244 (3d Cir. 2008). In Jackson, a defendant who had signed
    an appellate waiver sought to challenge only the reasonableness of his sentence. We
    6
    concluded that the “case obviously [did] not present the „unusual circumstances‟ we
    contemplated in Khattak.” 
    Id. at 244
    . We emphasized that “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.” 
    Id.
     No such rare and unusual
    situation is presented here, because the District Court ordered a within-Guidelines range
    sentence. See Gwinnett, 
    483 F.3d at 205-206
     (affirming a judgment in which the
    defendant entered a knowing and voluntary waiver, yet presented a challenge to the
    reasonableness of her sentence). In short, there has been no miscarriage of justice. We
    will, therefore, “apply a presumption of reasonableness to a district court sentence that
    reflects a proper application of the Sentencing Guidelines,” Rita, 
    551 U.S. at 347
    , and
    enforce Appellant‟s knowing and voluntary waiver of his appellate rights.
    B.
    Having established that there has not been a miscarriage of justice, we decline to
    review Appellant‟s challenge to his sentence itself, because none of the exceptions to the
    appellate waiver apply. The government did not appeal the sentence. The sentence
    imposed by the District Court was below the statutory maximum. The District Court did
    not depart upward under the Guidelines, and the sentence imposed was within the
    Guidelines range determined by the court. Although Appellant contends that the District
    Court erred in denying his request for a downward adjustment under U.S.S.G. § 3B1.2,
    this claim involves the applicability of a Guidelines enhancement—not a departure or a
    variance—and is thus foreclosed from our review. See United States v. Shedrick, 
    493 F.3d 292
    , 298 n.5 (3d Cir. 2007). The Court in Shedrick explained:
    An „enhancement‟ is an adjustment to the base offense level as
    specifically provided by the Guidelines, whereas an „upward departure‟
    is a discretionary adjustment to the Guidelines range once calculated. . . .
    While [the defendant] has a right to appeal the District Court‟s upward
    7
    departure under his plea waiver, the literal words of that waiver make
    clear that he has no concomitant right to appeal the enhancement.
    
    Id.
     Appellant‟s claim, thus, does not fall within the limited exceptions stated in the
    waiver and does not trigger the right to appellate review. Phi Xin‟s sentence, therefore,
    will be affirmed.
    *****
    We have considered all of the arguments advanced by the parties and conclude
    that no further discussion is necessary. The judgment of the District Court will be
    AFFIRMED.
    8