United States v. Jason Sheppard , 699 F. App'x 141 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4434
_____________
UNITED STATES OF AMERICA
v.
JASON SHEPPARD,
Appellant
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No. 2-13-cr-00278-001)
District Judge: The Honorable Cathy Bissoon
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 26, 2017
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Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit Judges.
(Filed: October 24, 2017)
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OPINION *
_______________________
McKEE, Circuit Judge.
Jason Sheppard appeals the sentence imposed by the District Court following his
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
guilty plea to one count of mail fraud in violation of 18 U.S.C. § 1341. Sheppard argues
that: 1) his criminal history category overstated the seriousness of his criminal history
and his likelihood of recidivism; and 2) the District Court erred by declining to grant him
a downward departure or variance under U.S.S.G. § 5G1.3. However, we decline to
reach the merits of Sheppard’s appeal because his plea agreement contained an appellate
waiver.
I. 1
As noted, Sheppard’s plea agreement contained a waiver of his appellate rights by
which he agreed to waive his right to appeal his conviction or sentence subject to three
exceptions which do not apply and which he does not now assert. Rather than assert that
one or more of the exceptions to the appellate waiver apply, Sheppard refuses to discuss
the applicability of the waiver in his opening brief because the government “has not
invoked the waiver.” 2
However, we have never held that the Government must affirmatively assert an
appellate waiver in a motion before we will enforce it according to its terms. It is not
disputed that Sheppard reviewed the plea agreement containing the waiver with his
counsel and then knowingly plead guilty. Moreover, the District Court thoroughly
fulfilled its obligations under Federal Rule of Criminal Procedure 11(b)(1)(N) and
1
The District Court had subject matter jurisdiction over the case pursuant to 18 U.S.C. §
3231. This Court has appellate jurisdiction over this matter under 28 U.S.C. § 1291, and
has jurisdiction pursuant to 18 U.S.C. § 3742 to review the sentence imposed on the
defendant.
2
Appellant’s Br. at 11.
2
ensured that Sheppard appreciated the effect of the appellate waiver by asking him to
verify whether he understood the three exceptions contained therein. 3 He indicated that
he did. 4 Accordingly, unless enforcing the waiver would result in a miscarriage of justice,
it should be enforced as agreed to. 5
We have reviewed the sentencing transcript and it is clear that enforcing the
appellate waiver will not result in a miscarriage of justice. Our review of the record
reveals no error on the part of the District Court that would have prejudiced Sheppard.
Moreover, Sheppard agreed with the Government’s description of his crimes 6 and, as
discussed, knowingly and voluntarily signed the appellate waiver before pleading guilty
to one count of mail fraud.
II.
For the reasons set forth above, we dismiss Sheppard’s appeal and affirm the
judgment of the District Court.
3
App. at 130–31A.
4
Id.
5
“Waivers of appeals, if entered into knowingly and voluntarily, are valid, unless they
work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir.
2001).
6
App. at 136–37A.
3