United States v. Kohlmiller , 304 F. App'x 956 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-30-2008
USA v. Kohlmiller
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4056
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4056
UNITED STATES OF AMERICA
v.
MICHAEL KOHLMILLER,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D. C. No. 06-cr-00051-1E)
District Judge: Honorable Maurice B Cohill, Jr.
Submitted under Third Circuit LAR 34.1(a)
on December 11, 2008
Before: McKEE, SMITH and ROTH, Circuit Judge
(Opinion filed: December 30, 2008)
OPINION
ROTH, Circuit Judge:
Michael Kohlmiller appeals the sentence imposed by the United States District
Court for the Western District of Pennsylvania. For the reasons discussed below, we will
affirm.
I. Background and Procedural History
Because the facts are well known to the parties, we will discuss them only briefly
here.
On September 12, 2006, a grand jury in the Western District of Pennsylvania
returned a fifty-seven-count indictment charging Michael Kohlmiller with forty-five
counts of bank fraud in violation of 18 U.S.C. § 1344, eleven counts of wire fraud in
violation of 18 U.S.C. § 1343, and one count of aggravated identity theft in violation of
18 U.S.C. § 1028(A). On March 28, 2007, pursuant to the parties’ plea agreement,
Kohlmiller pleaded guilty to Count One and Count Fifty-Seven; he acknowledged
responsibility for the conduct charged in the intervening counts. On October 9, 2007, the
District Court sentenced Kohlmiller to seventy-five months’ imprisonment. The District
Court also imposed five-years’ supervised release and ordered Kohlmiller to pay
restitution.
In the parties’ plea agreement, Kohlmiller agreed to waive his 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 three exceptions. Those three exceptions are as follows: (1) the
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government appealed his sentence, (2) the sentence exceeded the statutory limits set forth
in the United States Code, or (3) the sentence unreasonably exceeded the Guidelines
range as determined by the District Court. Kohlmiller argues that the waiver agreement
does not bar this Court from addressing his argument that the District Court applied
improper enhancements during sentencing.
II. Analysis
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
“Where, as here, the government invokes an appellate-waiver provision contained
in a defendant’s plea agreement, we must determine as a threshold matter whether the
appellate waiver prevents us from exercising our jurisdiction to review the merits of the
defendant’s appeal.” United States v. Corso, --- F.3d --- (3d Cir. December 15, 2008).
We will not exercise our jurisdiction if we conclude that the defendant knowingly and
voluntarily waived his right to appeal unless the result would “work a miscarriage of
justice.” See United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008); United States
v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007).
Kohlmiller first argues that he did not knowingly and voluntarily enter into the
waiver agreement because neither the government nor the District Court read the entire
waiver paragraph during the guilty-plea colloquy. To evaluate whether Kohlmiller
knowingly and voluntarily signed the waiver, we first look to the language of the
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agreement. Gwinnett, 483 F.3d at 203–04; see Goodson, 544 F.3d at 535. The language
of the plea agreement conveys a clear intent to bind Kohlmiller because it states that
“Michael Kohlmiller 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.” We next look to the colloquy
between the District Court and Kohlmiller to determine whether the District Court placed
Kohlmiller under oath and determined that he understood the terms of the waiver. See
Gwinnett, 483 F.3d at 204. The District Court satisfied this requirement because it asked
Kohlmiller whether he read the plea agreement, discussed it with his attorney, and
understood it. The District Court, furthermore, specifically asked Kohlmiller whether he
understood that the plea agreement “significantly circumscribed” his “appellate rights.”
Kohlmiller responded, “Yes, sir,” and asked no questions. Kohlmiller thus knowingly
and voluntarily entered into the waiver agreement.
Kohlmiller also argues that this appeal falls within the third exception to the
waiver agreement. Under the third exception, Kohlmiller retained the right to appeal to
the extent that his “sentence unreasonably exceeds the guidelines range determined by the
Court.” Kohlmiller’s challenge fails because he does not argue that his sentence
“exceeded” the range determined by the District Court. Indeed, he concedes that the
sentence fell within the range. He, instead, attacks the District Court’s imposition of
enhancements, which resulted from the calculation of the Guidelines. See United States
v. Shedrick, 493 F.3d 292, 298 n.5 (3d Cir. 2007). As we noted in Shedrick, Kohlmiller
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waived his right to appeal an enhancement under the waiver agreement; he retained the
right to appeal only if the District Court upwardly departed from the Guidelines. Id.
Finally, Kohlmiller argues that this Court should hear this appeal because the
enforcement of the waiver would work a miscarriage of justice because it was the product
of ineffective assistance of counsel. Kohlmiller argues that counsel was ineffective
because counsel should have advised him that the plea agreement was not supported by
consideration. Plea agreements are construed according to general contract-law
principles. See Corso, --- F.3d at ---; United States v. Schwartz, 511 F.3d 403, 405 (3d
Cir. 2008). It is axiomatic that contracts must be supported by consideration. See, e.g.,
Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002) (internal citations
omitted). We apply a fact-specific approach to determine whether a miscarriage of justice
will result from enforcement of a waiver of appellate rights. United States v. Khattak,
273 F.3d 557, 564 (3d Cir. 2001). We consider, inter alia, the clarity of the error, its
gravity, and its character. Id. Kohlmiller fails here because he does not identify any error
by counsel because consideration did, in fact, support the plea agreement—that is,
Kohlmiller obtained dismissal of fifty-five counts because the government moved to
dismiss them and the government, in return, obtained two guilty pleas.
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III. Conclusion
For the reasons set forth above, we will affirm the judgment of sentence of the
District Court.
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