United States v. Sunni Ali , 384 F. App'x 165 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1561
UNITED STATES OF AMERICA
v.
SUNNI ALI,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-07-cr-00042-002)
District Judge: Honorable John P. Fullam
Submitted Under Third Circuit LAR 34.1(a)
June 3, 2010
Before: AMBRO, CHAGARES, and VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 21, 2010)
OPINION
AMBRO, Circuit Judge
Sunni Ali appeals his sentence of 32 years’ imprisonment for offenses arising out
of his participation in three robberies. We affirm the sentence.
I.
In January 2005, Ali and co-defendant David Green conspired to rob the
Philadelphia restaurant where Ali was employed. Ali alerted Green by cell phone when
his manager began opening the restaurant’s safe; Green then entered the restaurant,
brandished a handgun, and forced the manager to open the safe. Green took
approximately $2,800 from the safe, which Green and Ali divided between themselves.
In March 2005, Green and Ali planned to rob the employees of the same restaurant
as they were leaving to deposit the night’s proceeds in the bank. Ali called Green when
the employees left the restaurant; Green then approached the employees, brandished a
handgun, and demanded the backpack they were carrying. There was approximately
$3,500 in the backpack, which Green and Ali split.
In April 2005, Ali and Green robbed an Orange Julius store in the King of Prussia
Mall. After the store closed for the evening, Ali and Green entered the back of the store
and, armed with handguns, accosted an employee who was counting money. They split
the approximately $900 they took from the store.
In January 2006, a federal grand jury returned an indictment charging Ali with one
count of conspiracy to interfere with interstate commerce by robbery, in violation of 18
U.S.C. § 1951(a) (Count One); three counts of interference with interstate commerce by
robbery, also in violation of 18 U.S.C. § 1951(a) (Counts Two, Four, and Six); and three
counts of using and carrying (and aiding and abetting the use and carrying of) a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)
(Counts Three, Five, and Seven). Ali faced a total mandatory minimum sentence of 57
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years’ imprisonment on the § 924 counts.1
Ali pled guilty to these offenses in February 2008 pursuant to a plea agreement.
During the plea hearing, the District Court and the Government recited the total
mandatory minimum sentence Ali faced as a result of pleading guilty. The Government
also outlined the terms of the appellate waiver in Ali’s plea agreement, under which Ali
waived his rights to appeal or collaterally attack his conviction or sentence.
Ali was sentenced in February 2009. Prior to sentencing, the Government moved
to dismiss one of the § 924(c) counts (Count Seven), thus reducing the total mandatory
minimum sentence Ali faced to 32 years’ (384 months’) imprisonment. With an offense
level of 22 and a criminal history category of IV, Ali’s Guideline range for the other
counts of conviction was 68 to 73 months’ imprisonment, resulting in a final Guideline
range of 452 to 457 months’ imprisonment. See U.S.S.G. § 5G1.2(a).
The District Court concluded that a sentence within the Guideline range “would
[be] . . . unreasonably long,” and sentenced Ali to the mandatory minimum term of 384
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Count Three charged Ali with aiding and abetting the brandishing of a firearm
during the January 2005 robbery, and carried a consecutive mandatory minimum sentence
of 7 years’ imprisonment. See 18 U.S.C. § 924(c)(1)(A)(ii) (providing for a consecutive
mandatory minimum sentence of 7 years’ imprisonment for possessing a firearm during
and in relation to a crime of violence where the firearm is brandished). Counts Five and
Seven each carried consecutive mandatory minimum sentences of 25 years’
imprisonment, resulting in a total mandatory minimum sentence of 57 years’
imprisonment. See id. § 924(c)(1)(C)(i) (providing for a consecutive mandatory
minimum sentence of 25 years’ imprisonment for a second or subsequent conviction
under § 924(c)); see also Deal v. United States, 508 U.S. 129, 131–34 (1993)
(§ 924(c)(1)(C)(i) applies even if the second or subsequent conviction is for a count
charged in the same indictment as the initial violation of § 924(c)).
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months’ imprisonment. Despite his plea agreement and appellate waiver, Ali timely
appealed his sentence.2
II.
In his plea agreement, Ali waived his right to appeal his sentence unless: (1) the
Government appealed; (2) the sentence on any count of conviction exceeded the statutory
maximum; (3) the District Court erroneously departed upward from the Guideline range;
or (4) the Court unreasonably varied upward from the Guideline range. None of those
circumstances applies: the Court sentenced Ali to the mandatory minimum sentence
(which represented a 68-month downward variance from the Guideline range), and the
Government has not appealed that sentence. Accordingly, we will enforce the appellate
waiver and decline to deal with the merits of Ali’s appeal unless (1) his waiver was not
knowing and voluntary, or (2) enforcement of the waiver “would work a miscarriage of
justice.” United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007).
Ali does not address his appellate waiver in his brief, much less contend that it was
not knowing and voluntary. In any event, our review of the record confirms that Ali
knowingly and voluntarily waived his right to appeal.3 Moreover, we are aware of no
2
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(a). See also United States v.
Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007) (“[T]his court retains subject matter
jurisdiction over the appeal by a defendant who had signed an appellate waiver.”).
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The Government points out that the District Court technically violated Federal
Rule of Criminal Procedure 11 during Ali’s change of plea hearing by failing to (1)
discuss specifically the appellate waiver with Ali, and (2) confirm that he understood that
provision. See Fed. R. Crim. P. 11(b)(1)(N) (“[T]he court must inform the defendant of,
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“miscarriage of justice” that would result from enforcing the waiver.4 Accordingly, we
enforce the appellate waiver, decline to reach the merits of Ali’s appeal, and thus affirm
his sentence. See id. at 206 (affirming the District Court’s judgment after enforcing an
appellate waiver).
and determine that the defendant understands, . . . the terms of any plea-agreement
provision waiving the right to appeal or to collaterally attack the sentence.”).
Even if Ali had challenged this deficiency in the Court’s colloquy, we would still
enforce the appellate waiver (under a plain error analysis), as we are satisfied that any
deficiency in the colloquy did not affect Ali’s “substantial rights.” United States v.
Corso, 549 F.3d 921, 928 (3d Cir. 2008). Though the District Court failed to address
specifically the appellate waiver, the Government explained the terms of the appellate
waiver during the plea hearing, and the Court questioned Ali to confirm that (1) he had
reviewed the plea agreement with his attorney, and (2) he understood the agreement. In
these circumstances, Ali cannot show that “the deficient Rule 11 colloquy precluded him
from understanding that he had a right to appeal and that he had substantially agreed to
give up that right.” United States v. Goodson, 544 F.3d 529, 540–41 (3d Cir. 2008).
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An examination of the merits of Ali’s challenges to his sentence demonstrates
that enforcement of the appellate waiver will not result in a miscarriage of justice.
Though he did not raise these arguments before the District Court, Ali argues on appeal
that his sentence should be vacated because the mandatory minimum sentences required
by 18 U.S.C. § 924(c) violate the Due Process Clause of the Fifth Amendment and the
separation of powers. We note that our Court has repeatedly rejected such challenges to
mandatory minimum sentences (including the mandatory minimum sentences provided
under § 924(c)). See United States v. Walker, 473 F.3d 71, 75–76 (3d Cir. 2007); United
States v. MacEwan, 445 F.3d 237, 250–53 (3d Cir. 2006); United States v. Frank, 864
F.2d 992, 1010 (3d Cir. 1988).
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