United States v. Joseph Allen , 335 F. App'x 217 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-29-2009
USA v. Joseph Allen
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2741
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2741
UNITED STATES OF AMERICA
v.
JOSEPH ALLEN,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-07-cr-00467-001)
District Judge: Honorable Jan E. Dubois
Submitted Under Third Circuit LAR 34.1(a)
May 13, 2009
Before: AMBRO, ROTH, Circuit Judges and FISCHER * , District Judge
(Opinion filed: June 29, 2009)
OPINION
AMBRO, Circuit Judge
Joseph Allen pled guilty to contempt of court, in violation of 18 U.S.C. § 401(3),
*
Honorable Nora Barry Fischer, United States District Judge for the Western District
of Pennsylvania, sitting by designation.
and was sentenced to 25 months’ imprisonment. He now appeals his sentence. We
affirm.1
Because we write only for the parties, we will recite only those facts necessary to
our disposition. In July 2003, Allen participated in the armed robbery of a Philadelphia
bank by acting as the switch-car driver. He subsequently pled guilty to conspiracy to
commit armed bank robbery, armed bank robbery, and using and carrying a firearm in
connection with a crime of violence, and cooperated with the Government by testifying
against one of his co-conspirators. In addition, Allen informed authorities that his best
friend, Kevin Jenkins, had participated in an unrelated crime involving a carjacking and a
botched bank robbery. At sentencing, the Government moved for a downward departure
from both the applicable Sentencing Guidelines range and the applicable mandatory
minimum sentence based on Allen’s cooperation. Ultimately, Allen was sentenced to 48
months’ imprisonment, despite facing a Guidelines range of 125–135 months.
In June 2007, Allen was subpoenaed by the Government to testify against Jenkins
at his trial in the Eastern District of Pennsylvania. Through his attorney, Allen advised
the Government and the Court that he would not testify. The District Court conducted a
hearing with Allen outside the presence of the jury at which it informed him that he had
no Fifth Amendment privilege not to testify against Jenkins. It then allowed the
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
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Government to ask Allen the line of questions it intended to pursue at trial. When Allen
refused to answer any of the Government’s questions, the Court made a finding that Allen
had willfully disobeyed its order. Jenkins was later convicted without Allen’s testimony.
In August 2007, Allen was indicted by a grand jury in the Eastern District of
Pennsylvania for contempt of court, in violation of 18 U.S.C. § 401(3). Five months
later, Allen pled guilty pursuant to a plea agreement that included a waiver of his right to
appeal (subject to certain exceptions). The Sentencing Guidelines do not provide a base
offense level for § 401(3) violations, but rather direct the parties to apply the Guideline
for the most analogous offense. See U.S.S.G. § 2J1.1 (instructing the parties to apply
U.S.S.G. § 2X5.1 for § 401 violations, which in turn directs the parties to “apply the most
analogous offense [G]uideline”). In calculating Allen’s base offense level, the Probation
Office determined that obstruction of justice was the most analogous offense, and,
accordingly, assigned Allen’s crime a base offense level of 14. See U.S.S.G. § 2J1.2.
The Probation Office applied a two-level reduction for Allen’s acceptance of
responsibility, which, when combined with his criminal history category of IV, resulted in
a Sentencing Guidelines range of 21 to 27 months.
At his sentencing hearing, Allen argued that he merited a below-Guidelines
sentence because his conduct, even if analogous to obstruction of justice, did not involve
threats or intimidation. The Government argued for an upward departure, contending that
Allen’s offense was “outside the heartland” of § 401(3) violations because he not only
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disobeyed a court order to testify, but he did so after having received a substantial
reduction of his earlier sentence based on his willingness to cooperate. The District Court
sentenced Allen to 25 months’ incarceration, and he timely appealed.
Allen’s sole argument is that it was unreasonable to sentence him based on the
offense level for an obstruction of justice violation because his “conduct in refusing to
testify was so [de] minimus that it did not rise to the level of conduct required for a
person to be guilty of obstruction of justice.” Allen’s Br. 8. In response, the Government
contends that it was appropriate to analogize Allen’s conduct to an obstruction of justice
violation, and that, at any rate, Allen’s appellate waiver bars him from challenging his
sentence on that ground.
We consider three elements when the Government invokes an appellate waiver:
was it “knowing and voluntary”; whether the appellate grounds being raised by the
defendant fall outside the scope of the waiver; and does enforcing the waiver result in a
“miscarriage of justice.” United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008).
The Government has satisfied each of those elements here.
First, during Allen’s plea colloquy, the Court twice explained the consequences of
the appellate waiver to Allen and each time he acknowledged that he understood them. In
addition, the Court took measures to determine that Allen was competent to make
decisions on his own behalf and that he had discussed the terms of the plea agreement
with counsel prior to entering his plea. That was sufficient to establish that Allen’s
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waiver of his appellate rights was knowing and voluntary. See Fed. R. Crim. Pro.
11(b)(N) (“Before the [C]ourt accepts a plea of guilty . . . the [C]ourt must address the
defendant personally in open court [and] inform the defendant of, and determine that the
defendant understands, . . . the terms of an plea-agreement provision waiving the right to
appeal . . . .”).
Second, the specific challenge Allen is bringing does not fall within one of the
waiver’s narrow exceptions. The waiver reserved to Allen the right to appeal his
conviction or sentence if (1) the Government appeals; (2) the sentence he received is
above the statutory maximum; (3) the sentencing judge erroneously departed upward
pursuant to the Sentencing Guidelines; and (4) the sentencing judge imposed an
unreasonable sentence above the final Guidelines range as determined by the Court.
None of those situations exists here.
Finally, we do not believe that enforcing Allen’s appellate waiver would effect a
miscarriage of justice. The decision to sentence Allen based on an analogy to an
obstruction of justice violation was specifically contemplated by the Application Notes to
§ 2J1.1, which provide that “[i]n certain cases the offense conduct will be sufficiently
analogous to § 2J1.2 (Obstruction of Justice) for that guideline to apply.” U.S.S.G
§ 2J1.1 n.1. Moreover, courts of appeals have affirmed sentences based on analogies to
obstruction of justice violations in similar circumstances. See, e.g., United States v.
Marquardo, 149 F.3d 36, 45–46 (1st Cir. 1998); United States v. Remini, 967 F.2d 754,
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760 (2d Cir. 1992). Thus, the most Allen can show is that the decision to sentence him by
analogizing his conduct to an obstruction of justice violation was debatable. But a
“waiver of the right to appeal includes a waiver of the right to appeal difficult or
debatable legal issues.” United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001)
(quoting United States v. Howie, 166 F.3d 1166, 1169 (11th Cir. 1999)). Accordingly,
enforcing Allen’s appellate waiver will not work a miscarriage of justice.
* * * * *
For these reasons, we will enforce the appellate waiver and affirm the judgment of
the District Court.
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