United States v. Rosado

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-14-2006
USA v. Rosado
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1128
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Recommended Citation
"USA v. Rosado" (2006). 2006 Decisions. Paper 903.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-1128
____________
UNITED STATES OF AMERICA
v.
LUIS ROSADO
a/k/a MANUEL ROSADO
a/k/a MANDO
Luis Rosado,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cr-00509-2)
District Judge: Honorable J. Curtis Joyner
____________
Submitted Under Third Circuit LAR 34.1(a)
June 13, 2006
Before: FISHER, ALDISERT and LOURIE,* Circuit Judges.
(Filed June 14, 2006)
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OPINION OF THE COURT
____________
FISHER, Circuit Judge.
*
The Honorable Alan D. Lourie, United States Circuit Judge for the Federal
Circuit, sitting by designation.
Despite the presence of an appellate waiver provision in his plea agreement, Luis
Rosado appeals from the District Court’s imposition of a 144 month sentence following
his guilty plea to one count of distributing cocaine base. Because we find that Rosado
knowingly and voluntarily waived his right to appeal his sentence, we will dismiss the
appeal.
I.
As we write solely for the parties, and the facts are known to them, we will discuss
only those facts pertinent to our conclusion. On August 24, 2004, Rosado pleaded guilty
to one count of distribution of cocaine base pursuant to a written plea agreement he
entered into with the Government. The agreement contained a broad appellate waiver
provision, under which Rosado could appeal his sentence only in three narrow
circumstances: (1) if his sentence exceeded the applicable statutory maximum; (2) if the
sentencing judge erroneously departed upward from the otherwise applicable sentencing
guideline range; or (3) if the government appealed from the sentence. During the change
of plea hearing, Rosado acknowledged to the District Court that the appellate waiver
provision was an essential term of his plea agreement. The District Court thereafter
determined that Rosado’s plea was knowing and voluntary, and supported by evidence as
to each element of the offense.1 As a result, the court accepted Rosado’s guilty plea to
count one.
1
Rosado does not challenge on appeal any findings the District Court made at the
change of plea hearing.
2
After the probation office prepared a presentence investigation report, the District
Court conducted a sentencing hearing on January 6, 2005. The District Court agreed with
the probation office that Rosado had an offense level of 34 and a criminal history
category of VI. As a result, Rosado was subject to a sentencing guideline range of 262 to
327 months imprisonment. See U.S. Sentencing Guidelines Manual ch. 5, pt. A (2004).
The District Court subsequently granted the government’s motion for a downward
departure on the basis of Rosado’s substantial assistance, and ultimately sentenced
Rosado to 144 months imprisonment.2
II.
We apply a de novo standard of review when determining the validity of a guilty
plea agreement containing a waiver of appellate rights. United States v. Khattak, 273
F.3d 557, 560 (3d Cir. 2001). We will uphold Rosado’s waiver if he knowingly and
voluntarily waived his appellate rights, unless giving force to the waiver would work a
“miscarriage of justice.” Id. at 563.
Rosado essentially argues that his sentence should be vacated and remanded
because the District Court erroneously used the mandatory guidelines range as the starting
point from which to downward depart. The government concedes that Rosado would
ordinarily be entitled to a Booker remand, see United States v. Davis, 407 F.3d 162 (3d
2
The District Court also sentenced Rosado to five years supervised release and
imposed a fine in the amount of $2,000.00.
3
Cir. 2005) (en banc), but argues that we lack appellate jurisdiction because Rosado’s plea
agreement contained a valid appellate waiver provision. We agree.
In our recent decision in United States v. Lockett, 406 F.3d 207, 212-14 (3d Cir.
2005), we held that a criminal defendant who executed an appellate waiver as part of his
guilty plea agreement was not entitled to resentencing in the wake of Booker. In Lockett,
the defendant voluntarily waived his appellate rights in connection with a signed guilty
plea agreement. After the District Court imposed sentence, the Supreme Court issued its
decision in Booker. The defendant urged us on appeal to vacate his sentence
notwithstanding the appellate waiver provision because the holding in Booker, rendering
the guidelines advisory, was unanticipated. We rejected this argument on the basis that
“[t]he possibility of a favorable change in the law occurring after a plea agreement is
merely one of the risks that accompanies a guilty plea.” Id. at 214. See also United
States v. Bradley, 400 F.3d 459, 463-66 (6th Cir. 2005); United States v. Sahlin, 399 F.3d
27, 30-31 (1st Cir. 2005); United States v. Rubbo, 396 F.3d 1330, 1334-35 (11th Cir.
2005).
Similarly, we lack appellate jurisdiction in this case to vacate Rosado’s sentence.
Rosado acknowledged at his change of plea hearing that his plea agreement contained an
express waiver of appellate rights. The District Court determined that Rosado knowingly
and voluntarily waived those rights and pleaded guilty, a finding that Rosado has not
appealed. In addition, Rosado’s appeal is not premised on any of the narrow exceptions
enumerated to in the plea agreement. Rather, his sole ground for appeal rests on the
4
District Court’s employment of a then-mandatory guidelines regime as a fixed point from
which to apply a downward departure. Our decision in Lockett, however, clearly
forecloses Rosado’s argument that Booker renders involuntary an otherwise valid
appellate waiver.
For these reasons, we will dismiss Rosado’s appeal as inconsistent with the
appellate waiver in his guilty plea agreement.
5