United States v. Richard Banks, 743 F.3d 56

Banks, on supervised release for a prior bank fraud conviction, was arrested in 2011 for conspiring to pass over 75 fraudulent checks (~$130,000).
He pleaded guilty to conspiracy to commit bank fraud (18 U.S.C. § 1349) and to violating supervised release; stipulated a Grade A violation and agreed to an offense level 14, Criminal History VI in the plea agreement.
The plea agreement: (A) preserved sentencing judge discretion and warned no guideline promises; (B) stated the court may order sentences (fraud and supervised-release violation) consecutively under 18 U.S.C. § 3584 and U.S.S.G. § 7B1.3(f); and (C) contained a broad waiver of appellate rights to challenge any sentence within or below the agreed Guidelines ranges.
At sentencing the court granted Banks a 6-level downward departure for cooperation on the fraud count (resulting in 18 months), but denied that departure and a concurrent sentence for the supervised-release violation and imposed 33 months consecutive for the violation.
Banks appealed, arguing the appellate waiver did not cover the district court’s imposition of a consecutive sentence and that the agreement was ambiguous and the consecutive sentence a miscarriage of justice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate waiver covers challenge to consecutive sentence for supervised-release violation	Banks: waiver does not encompass the district court’s consecutive 33-month term	Government: waiver broadly covers any appeal challenging the sentence imposed, including consecutive terms; plea anticipated consecutive sentence	Waiver covers the challenge; appeal barred because waiver was knowing, voluntary, and not a miscarriage of justice
Whether plea language was ambiguous about consecutive sentencing	Banks: language (“may order”) is vague and left him unaware that consecutive sentence could be sought/imposed	Government: “may” correctly reflects court discretion; Section B explicitly contemplates consecutive sentences	No ambiguity; language plainly informed defendant that consecutive sentencing was possible
Whether enforcing waiver would be a miscarriage of justice (renders waiver unenforceable)	Banks: consecutive sentence is excessive and a breach of trust—so enforcement would be unjust	Government: both sentences were within agreed guideline ranges and well below statutory maximums	Not a miscarriage of justice; factors weigh against setting aside the waiver
Proper standard of review for waiver scope	Banks: (implicit) seeks review despite waiver	Government: argues deference to waiver enforceability standards	Court applies plenary review to scope and enforces waiver under established tests

United States v. Castro, 704 F.3d 125 (3d Cir. 2013) (standard for enforcing plea-waiver and construing waiver language)
United States v. Saferstein, 673 F.3d 237 (3d Cir. 2012) (elements for declining jurisdiction where waiver applies)
United States v. Khattak, 273 F.3d 557 (3d Cir. 2001) (construe appellate waivers strictly; miscarriage-of-justice standard)
United States v. Jackson, 523 F.3d 234 (3d Cir. 2008) (waiver exceptions must be explicit to preserve appellate review)
United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) (factors to consider when deciding whether enforcing a waiver would be a miscarriage of justice)