United States v. Saferstein, 2012 U.S. App. LEXIS 1619

Saferstein pled guilty to mail and wire fraud and submitting false tax returns in a scheme involving GoInternet; plea agreement included an appellate waiver with exceptions for non-waivable constitutional claims; district court explained appellate rights during plea colloquy, indicating constitutional claims could be raised; district court denied acceptance-of-responsibility credit and imposed a 23-year sentence after a downward variance; Saferstein appealed challenging credit, allocution rights, and an ex post facto issue; the Third Circuit vacates the sentence and remands for resentencing consistent with its opinion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appellate waiver forecloses Saferstein’s appeal.	Saferstein asserts the plea-colloquy statement created ambiguity allowing constitutional claims to be raised.	The waiver language is clear and broad; the court’s statement does not change the waiver.	Appellate rights preserved for constitutional claims; waiver narrowed by court misstatement.
Whether the sentencing under a later Guidelines violated the ex post facto clause.	Saferstein argues applying the later Guidelines increased penalties for post-offense conduct.	Government argues one-book rule and grouping mitigate ex post facto concerns.	Ex post facto violation; sentence vacated and remanded for resentencing using the correct Guidelines.

United States v. Corso, 549 F.3d 921 (3d Cir. 2008) (plenary review of appellate-waiver validity; miscarriage of justice)
United States v. Williams, 510 F.3d 416 (3d Cir. 2007) (contractual interpretation of plea agreements; protect defendant as weaker party)
United States v. Goodson, 544 F.3d 529 (3d Cir. 2008) (impact of Rule 11 colloquy on waiver knowingness)
United States v. Wilken, 498 F.3d 1160 (10th Cir. 2007) (court statements can create ambiguity in waivers; construe against government)
United States v. Adams, 252 F.3d 276 (3d Cir. 2001) (allocution right not constitutional)
United States v. Siddons, 660 F.3d 699 (3d Cir. 2011) (one-book rule with grouping; ex post facto concerns when applicable)
United States v. Astorri, 923 F.2d 1052 (3d Cir. 1991) (tax counts cannot be grouped with fraud against individuals)
United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994) (ex post facto concerns and guidelines retroactivity)
United States v. Seligsohn, 981 F.2d 1418 (3d Cir. 1992) (ex post facto and guidelines application for multiple offenses)
United States v. Corrado, 53 F.3d 620 (3d Cir. 1995) (statutory update on ex post facto considerations)
United States v. Cesare, 581 F.3d 206 (3d Cir. 2009) (plain-error standard for unpreserved claims; 4-prong test)