UNITED STATES of America v. Carlo Daniel CASTRO, Appellant.
No. 11-3893.
United States Court of Appeals, Third Circuit.
Argued Sept. 25, 2012. Filed: Jan. 8, 2013.
706 F.3d 125
III. Conclusion
To summarize, we conclude that plaintiffs’ challenges to the NRC‘s grant of an exemption to Entergy from certain fire safety regulations in the operation of its Indian Point 3 nuclear power plant are generally without merit. In one respect, however-i.e., plaintiffs’ claim that the NRC awarded the challenged exemption in violation of NEPA‘s public participation provisions--the administrative record is insufficient to permit meaningful judicial review. Thus, remand is necessary to allow the agency to supplement its decision.
The judgment of the district court is AFFIRMED IN PART in accordance with the summary order filed today and VACATED IN PART in accordance with this opinion, and the case is REMANDED for further proceedings consistent with this opinion, which proceedings are to be concluded within 120 days of the issuance of the mandate or such further time as this court shall authorize.
Louis D. Lappen [Argued], Office of United States Attorney, Philadelphia, PA, for Appellee.
Before: McKEE, Chief Judge, JORDAN, and VANASKIE, Circuit Judges.
OPINION OF THE COURT
JORDAN, Circuit Judge.
Daniel Castro, a high-ranking official in the Philadelphia Police Department, was indicted in connection with three separate schemes to extort money from separate individuals by use of violence. He was convicted by a jury on one count of making a material false statement to federal agents in violation of
To avoid a retrial, Castro pled guilty to a count of conspiracy to commit extortion in violation of
In this appeal, Castro challenges three facets of his conviction and sentence. First, he contends that there was insufficient evidence to convict him of making a false statement to the FBI about money allegedly received from an extortion victim. He argues that, because the money in question came from the FBI in the course of a sting operation, he told the literal truth when he denied having received any money from the alleged victim. Second, Castro challenges the District Court‘s authority to deny the government‘s motion, made pursuant to
We conclude that the appellate waiver encompasses both Castro‘s challenge to the sufficiency of the evidence and his claim that the District Court lacked authority to deny the government‘s motion for a one level decrease in his offense level. However, while the waiver properly applies to prevent our considering the District Court‘s refusal to award the requested downward departure, we conclude that application of the waiver against the sufficiency-of-the-evidence argument would, in the unusual circumstances of this case, work a miscarriage of justice. We will therefore vacate Castro‘s conviction and 18-month sentence for making a false statement to federal agents. We will also vacate Castro‘s 60-month sentence because the invalid conviction for false statements was included in calculating Castro‘s overall offense level, causing that level to
I. Background
A. Facts
Castro rose from challenging circumstances to become one of the highest ranking officers in the Philadelphia Police Department. During his 25 years of service as a policeman, he received numerous accolades and advancements, only a handful of which we mention here. In 1997, he was promoted to Captain. In 2001, he was nominated by the then-Mayor of Philadelphia, Edward Rendell, and Police Commissioner John Timoney to represent the Philadelphia Police Department as an Eisenhower Fellow, an important position that placed Castro in contact with community leaders from business, academia, and political and non-profit organizations, and allowed him to be part of international leadership mentoring programs. And in 2010, he was promoted to the position of Inspector, a high-ranking position within the police force. By all accounts, Castro was well regarded within the Philadelphia Police Department, and, as noted below, he saw himself as a viable candidate to one day become police commissioner. His successes and substantial authority make his subsequent criminal behavior all the more disturbing and damning.
In 2006, Castro invested $90,000 in a residential real estate development project organized by an acquaintance named Wilson Encarnacion. When the project failed, Castro repeatedly and unsuccessfully sought repayment from Encarnacion. The lost investment represented Castro‘s life savings.
In 2010, Castro discussed with another acquaintance, Rony Moshe, his frustration over the personally disastrous investment. Moshe mentioned that he knew a couple of tough debt collectors, and Castro asked if Moshe could engage the collectors to pressure Encarnacion to repay Castro‘s losses-losses that Castro evidently thought of as a debt Encarnacion owed him. Unbeknownst to Castro, Moshe was an FBI informant. He reported his conversation with Castro to the FBI, and an investigation was launched. At the FBI‘s behest, Moshe began secretly recording telephone conversations and in-person meetings with Castro. The undercover operation ran from April through November of 2010.
On April 7, 2010, Moshe told Castro in a series of recorded telephone calls that he had found a “collector” for Castro who was willing to collect the $90,000 debt from Encarnacion. Although Castro‘s loss on the failed investment was $90,000, he instructed Moshe to have the collector demand $150,000. When Moshe told Castro that the collector would use threatening and intimidating collection methods, Castro responded that he did not want to know the specific methods, that he did not want to meet the collector, and that he did not want the collector to know Castro‘s identity. Castro emphasized that he did not want to get “implicated into this.” (App. at 1291.) But he went ahead and provided Moshe with Encarnacion‘s home address, and he told Moshe to send the collector there because Encarnacion‘s wife and child would be there and “they‘ll get scared.” (App. at 346.)
Later, on June 4, Castro spoke by telephone with an undercover FBI agent posing as the collector. In that conversation, which was recorded, the agent told Castro that he and an associate had obtained
On June 11, Castro met with Moshe, who gave Castro the $4,500 supposedly collected from Encarnacion. Moshe said that, following Encarnacion‘s encounter with the collector, Encarnacion was “scared to death.” (App. at 3691.) Castro replied, “Good, Good, Good.” (App. at 361.) Castro acknowledged that the collector “mean[t] serious business,” and he mentioned that he was concerned that Encarnacion might go to the police. (App. at 1332-33, 360-62.)
Castro met with Moshe again on July 20, 2010, and Moshe gave him another $2,100 that the collector had supposedly obtained from Encarnacion. That money, like the first payment, came from the FBI. There is no evidence that Encarnacion was aware of the FBI‘s payments to Castro or that the FBI‘s payments somehow reduced a debt actually owed by Encarnacion. Moshe stated that if Castro wanted to recover his money more quickly, the collector would have to become “more aggressive.” (App. at 377.) Castro was hesitant to authorize more aggressive tactics, telling Moshe, “I can‘t get myself in trouble.... I want to be Police Commissioner.” (App. at 564.) Nevertheless, Castro urged Moshe to have the collector go back to Encarnacion‘s home and collect more money-“$10,000 at a shot.” (App at 384.)
Around that time, the undercover operation paused for nearly two months because Moshe suffered a stroke. In early September 2010, Moshe and Castro resumed speaking and, on September 10, Moshe told Castro that Encarnacion was refusing to pay. Moshe asked Castro if he wanted the collector to “rough him up.” (App. at 1369-70.) Castro responded, “Well, get, get my money. I want, I want my money. They, they, they, they know how to get it.” (App. at 1371.) When Moshe said that the collector might “break[ ] a leg, a hand, you know,” Castro responded, “I don‘t, I don‘t want the guy dead. I don‘t, I don‘t want to kill him.” (App. at 1373-76.)
During that conversation Castro broached the topic of a second debt collection effort. Castro told Moshe of two acquaintances, business partners Billy Wong and Alan Kats, who were looking to hire a debt collector. Moshe noted that, to extract money, the collectors would have to get rough with Wong‘s and Kats‘s debtor. Castro asked Moshe to meet with Wong on September 15, 2010. Castro admitted in his testimony at trial that he understood, as of that date but not before, that the supposed collectors would batter Wong‘s and Kats‘s debtor. He also acknowledged that he became aware at that time that the collectors Moshe had engaged for him would use threats of violence and, if necessary, actual violence to get money from Encarnacion. (District Court Docket Item (“D.I.“) 90:228-29 (Tr. 4/14/11) (Castro: “On [September 10], I crossed the line.... Q: [Wong and Kats’ debtor is] gonna get beaten, right? Just like [Encarnacion]----gonna get beaten, isn‘t that right? A: You can safely inference that, yes, sir.“)).
On September 15, 2010, Moshe met with Wong and Kats, who explained that they needed help collecting $26,000 that had been lost in a failed nightclub investment. Moshe told them about the collector whom he had used for Castro, and Kats told Moshe to go ahead and engage the collector‘s services. Wong and Kats understood that compelling their “debtor” to pay
On September 21, 2010, Moshe again spoke to Castro about the effort to collect money from Encarnacion. He said that the collectors had recovered a “pretty big chunk” of money by getting “pretty rough” with Encarnacion. (App. at 400-01.) Castro replied, “They got the end result.” (App. at 401.) About one week later, Moshe gave Castro $14,000 out of $15,000 that had supposedly been collected from Encarnacion, plus a $500 “referral fee” for referring Wong and Kats to the “collectors.” (D.I. 91:87-88 (Tr. 4/15); D.I. 137:22 (Plea).) During that meeting, Castro also told Moshe of a third collection job to refer to the collectors, this time for $1.5 million in Florida.
Soon thereafter, on October 4, 2010, FBI agent Brian Nichilo and Detective Steve Snyder of the Philadelphia Police conducted an unrecorded interview with Castro in which they pretended to be investigating a complaint from Encarnacion that he was being threatened in relation to a debt he owed. According to Nichilo‘s testimony at trial, Castro claimed that he had not discussed with anyone the collection of a debt from Encarnacion,1 that he did not hire anyone to extort money from Encarnacion,2 and that he had not received any money from Encarnacion. Specifically, Nichilo testified that he asked Castro “whether he had ever collected any money from Mr. Encarnacion since he originally gave him the $90,000 in 2006.” (App. at 105-06.) Castro responded, according to Nichilo, that he had not collected any money from Encarnacion. (App. at 106.) In his own trial testimony regarding that interview with law enforcement officials, Castro admitted that he had “lied” when he “told them I didn‘t know anything about what they asked me,” (App. at 121), and that he did not “tell them the truth.” (App. at 906.) But Castro denied making the particular statements recounted by Nichilo.
On October 12, 2010, Castro described his meeting with the FBI to Moshe. Castro instructed Moshe to cease collecting money from Encarnacion “for right now” (App. at 407), but he asked Moshe to have the collectors go to Florida to commence a collection effort there.
Castro was arrested on November 5, 2010. FBI agents searched his home and recovered the money that he had received from Moshe and that he had been told came from Encarnacion.
B. Course of Proceedings
A federal grand jury in the Eastern District of Pennsylvania returned a ten-count superseding indictment on February
A jury convicted Castro on Count Three, acquitted him on Count Ten, which charged the use of extortionate means to collect a debt, in violation of
At sentencing, the parties agreed that the combination of convictions on Counts Three and Nine led, under the applicable sentencing guidelines, to a sentencing range of 30 to 37 months, based on an offense level of 19 and criminal history category of I. The government also agreed to file a motion seeking a three-level downward departure under
Castro then filed this timely appeal.5
II. Discussion
Castro raises three arguments on appeal. First, he contends that his convic-
Second, Castro maintains that his sentence was procedurally unreasonable because the District Court erroneously denied the government‘s motion that his offense level be reduced not just two points but three points for “acceptance of responsibility” under the sentencing guidelines. He argues that
Third, Castro asserts that his 60-month sentence is procedurally and substantively unreasonable because the guidelines range determined by the District Court suggested a period of imprisonment of 33 to 41 months. He argues that the Court did not adequately take into account evidence of his good character and failed to explain why such a harsh sentence was necessary to fulfill the proper purposes of sentencing.
The government responds that Castro‘s first two challenges are barred by the appellate waiver contained in his plea agreement. In the alternative, the government argues that even if the appellate waiver does not foreclose Castro‘s claims, neither issue was raised in the District Court, and Castro cannot show that either of those claimed problems rises to the level of plain error. The government concedes that Castro‘s third argument is not barred by the appellate waiver, but it argues that “Castro cannot show that no reasonable court would have imposed such a sentence under [the] circumstances” of this case. (Appellee‘s Br. at 24-25.)
In the sections that follow, we address each of Castro‘s three arguments, with the first two arguments being affected by his appellate waiver.
A. Sufficiency of the Evidence for Castro‘s Conviction for False Statements
Before addressing either of Castro‘s first two contentions, we must first determine whether his appellate waiver bars us from even considering them. As part of his plea agreement, Castro generally agreed that he would neither appeal nor present any collateral challenge to his conviction or sentence. In pertinent part, the appellate waiver provides that, “[i]n exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant‘s conviction, sentence, or any other matter relating to this prosecution[.]” (App. at 127.) The waiver does, however, contain two exceptions that are relevant to this appeal: first, the waiver does not “bar the assertion of constitutional claims that the relevant case law holds cannot be waived” (App. at 127); and, second, the waiver allows appeal for “claims that ... the sentencing judge, exercising the Court‘s discretion pursuant to
“We exercise plenary review in deciding whether an issue raised by a defendant falls within the scope of an appellate waiver in his plea agreement.” United States v. Goodson, 544 F.3d 529, 537 n. 6 (3d Cir.2008). When “the government invokes an appellate-waiver provision ... we must determine as a threshold matter whether ... [that] waiver prevents us from exercising our jurisdiction to review the merits of the defendant‘s appeal.” United States v. Corso, 549 F.3d 921, 926 (3d Cir.2008) (citations omitted). “We decline to exercise jurisdiction over the appeal where [1] the issues on appeal fall within the scope of the waiver and [2] the defendant knowingly and voluntarily agreed to the waiver, unless [3] ‘enforcing the waiver would work a miscarriage of justice.‘” United States v. Saferstein, 673 F.3d 237, 242 (3d Cir.2012) (quoting Corso, 549 F.3d at 927); accord United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.2004) (en banc).
Under the first prong, we evaluate the language of the appellate waiver to determine if the disputed appeal falls within its scope. We follow the “well-established principle that plea agreements, although arising in the criminal context, are analyzed under contract law standards.” Goodson, 544 F.3d at 535 n. 3 (alteration and internal quotation marks omitted). “[I]n light of those standards, the language of an appellate waiver, like the language of a contract, matters greatly to our analysis[.] [S]uch waivers must be strictly construed.” Corso, 549 F.3d at 927 (citation, alteration, and internal quotation marks omitted); cf. United States v. Williams, 510 F.3d 416, 422 (3d Cir.2007) (“In view of the government‘s tremendous bargaining power courts will strictly construe the text [of a plea agreement] against the government when it has drafted the agreement.” (alterations omitted)). “But we are also mindful that under contract principles, a plea agreement necessarily works both ways. Not only must the government comply with its terms and conditions, but so must the defendant.” Corso, 549 F.3d at 927 (citations, alteration, and internal quotation marks omitted). Accordingly, a defendant cannot “get the benefits of his plea bargain, while evading the costs because contract law would not support such a result.” Id. (alteration and internal quotation marks omitted).
The second step in reviewing an appellate waiver is to determine whether the waiver is knowing and voluntary. “[T]he role of the sentencing judge is critical” in that regard, United States v. Khattak, 273 F.3d 557, 563 (3d Cir.2001), because
Before accepting a plea of guilty or nolo contendere, ... the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands the following: ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.
[T]he clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.
Id. at 563 (internal quotation marks omitted). Courts apply the “miscarriage of justice” exception “sparingly and without undue generosity,” United States v. Wilson, 429 F.3d 455, 458 (3d Cir.2005) (internal quotation marks omitted), but with the aim of avoiding “manifest injustice,” United States v. Gwinnett, 483 F.3d 200, 206 (3d Cir.2007).6
1. Scope of the Appellate Waiver
This case presents a procedural anomaly. Ordinarily, plea agreements are entered before any trial in a case, but Castro entered his plea agreement in anticipation of a second trial, after he had been tried once and convicted on one of ten counts. Our first task in determining whether Castro‘s appellate waiver should be enforced to prevent him from challenging his conviction for the crime charged in Count Three is to determine whether the waiver even encompasses that conviction.
Castro asserts that the language of the appellate waiver does not clearly apply to his conviction at trial. Because plea agreements are to be “strictly construed” against the government, Khattak, 273 F.3d at 562, he says that his appellate waiver should not apply to his conviction on Count Three. He cannot, however, wish away the words of the waiver. The plea agreement provides that Castro “voluntarily and expressly waives all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter relating to this prosecution.” (App. at 127.) The breadth of the phrase “any other matter relating to this prosecution” surely encompasses Castro‘s earlier conviction on Count Three, and Castro‘s attempt to argue otherwise is unavailing.
2. Knowing and Voluntary Waiver
But understanding the linguistic scope of the waiver is only the first step in determining whether the waiver applies. Castro claims that, during the Rule 11 colloquy, the District Court did not mention his earlier conviction, and that he was therefore under the impression that the waiver did not apply to that conviction. Instead, says Castro, the Court consistently emphasized that he was giving up his right to a second trial and the right to
Although he does not say so explicitly, Castro appears to be seeking shelter in our precedent that a judge‘s affirmative statements during a plea colloquy can sometimes overcome the otherwise plain terms of a plea agreement.7 Such judge-created “ambiguity” must be construed “against the government,” Saferstein, 673 F.3d at 243, because, “[i]f it is reasonable to rely upon the court‘s words for clarification, then we cannot expect a defendant to distinguish and disregard those statements of the court that deviate from the language of a particular provision in a lengthy plea agreement,” United States v. Wilken, 498 F.3d 1160, 1168 (10th Cir.2007).
Castro‘s argument is an elaboration on that precedent. He argues in essence that, by talking at length about the rights he would give up by foregoing a second trial, the District Court left him thinking that the waiver applied only prospectively and not as to the already fixed history of the case. He suggests, in other words, that it is not only a district court‘s affirmative statements that can change the scope of a plea agreement; a district court‘s emphases and omissions during a plea colloquy may also alter the defendant‘s understanding of the plain terms of the plea agreement. We have never so held and we will not do so now.
Indeed, even if we were to accept Castro‘s assertion that the District Court injected some confusion into the scope of the appellate waiver through emphasis and omission during the plea colloquy, we cannot accept that the colloquy overcame the import that the plea agreement‘s terms must have had for Castro, a man with years of law enforcement experience and two post-graduate degrees. A deficient plea colloquy will not overcome the plain terms of an appellate waiver when the defendant is highly educated and should accordingly be held to his informed understanding of the text of the waiver. See Goodson, 544 F.3d at 540-41 (defendant who was “college educated” and who had “successfully perpetrated wire fraud and the uttering of counterfeit checks” was held to his informed understanding of the plain terms of the plea agreement). Castro affirmed under oath that he understood the plea agreement, and nothing in the record undermines that affirmation. Given the plain terms of the plea agreement in this case, and given Castro‘s education and professional background, we conclude that he knowingly and voluntarily waived his right to appeal his “conviction ... or any other matter relating to this prosecution.” (App. at 127.)
3. Miscarriage of Justice
Castro‘s knowing and voluntary waiver forecloses his appeal of the conviction on Count Three, unless the waiver would result in a miscarriage of justice. Castro says it would, because the record is devoid of evidence that he made a false statement when he stated that he received no money from Encarnacion in repayment of his $90,000 investment. We are compelled to agree.
We have not previously evaluated a challenge to an appellate waiver that is grounded on a claim of insufficiency of evidence amounting to a miscarriage of justice. We have, however, evaluated
It bears emphasis, however, that a “manifest miscarriage of justice” warranting reversal on plain error review occurs only where the record is “devoid of evidence pointing to guilt“-a “stricter than usual standard.” United States v. Green, 293 F.3d 886, 895 (5th Cir.2002) (internal quotation marks omitted); see also United States v. Vasquez, 560 F.3d 461, 469 (6th Cir.2009) (“Because [defendant] failed to move for a judgment of acquittal at either the close of the government‘s case or the close of his case, we will reverse his conviction only if the record is devoid of evidence pointing to guilt, such that a manifest miscarriage of justice occurred.” (internal quotation marks omitted)); United States v. Irby, 558 F.3d 651, 653 (7th Cir.2009) (“[R]eversal is warranted only if the record is devoid of evidence pointing to guilt, or if the evidence on a key element was so tenuous that a conviction would be shocking.” (internal quotation marks omitted)); United States v. Spinner, 152 F.3d 950, 956 (D.C.Cir.1998) (“[A] miscarriage [of justice] would exist only if the record is devoid of evidence pointing to guilt, or because the evidence on a key element of the offense was so tenuous that a conviction would be shocking.” (alteration and internal quotation marks omitted)).
These insights from the plain error context are applicable to the “miscarriage of justice” argument before us now. Cf. Hahn, 359 F.3d at 1327 (holding that for an error to result in a miscarriage of justice that overcomes an appellate waiver “the error [must] seriously affect[] the fairness, integrity or public reputation of judicial proceedings” (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (alterations in original))). Castro is therefore required to show that, when viewed in the light most favorable to the government, the record is entirely devoid of evidence that he committed each element of a
Section 1001 calls for punishment of anyone who “knowingly and willfully ... makes any materially false, fictitious, or fraudulent statement or representation” in any matter within the jurisdiction of the
To establish a violation of
That fact is crucial because, to properly convict Castro of violating
Viewing the record as required by Bronston, it is devoid of evidence that Castro made a false statement when he told government agents that he had not received money from Encarnacion. On the contrary, that statement was completely, if unintentionally, accurate. Thus, allowing his conviction on Count Three to stand would be to allow a conviction when there has been a complete failure of proof on an essential element of the charged crime, and that would seriously impugn the fairness, integrity, and public reputation of our courts. In short, such a conviction constitutes a miscarriage of justice.
The government tries to work its way around this failure-of-proof problem by arguing for a “sting operation exception” in
The ready and dispositive response to that argument is that, even if a “sting exception” to the strictures of
The government nevertheless insists that a jury could conclude, based on the evidence, “that the money Castro received came ‘from’ Encarnacion.” (Appellee‘s Br. at 41.) According to the government, “[t]he FBI paid $21,000 in real cash to Castro, through its agent, Moshe, and represented through Moshe that the payments were on behalf of Encarnacion. A jury could thus readily determine that Castro received money ‘from’ Encarnacion, and lied about it to the agents when asked.” (Id. at 41.) It is not clear how the quotation marks around the word “from” in that sentence help the argument. The money was not “from” Encarnacion in any sense, and we are frankly at a loss to understand the government‘s assertion that Castro “not only believed that his answer was false ..., but it was in fact false.” (Appellee‘s Br. at 50.) There is, quite literally, no evidence whatsoever that even a penny of the money that Moshe handed over to Castro came from Encarnacion. To say, as the government does,
The complete failure of proof on the “actual falsity” element of the offense charged in Count Three requires reversal of Castro‘s conviction on that count, as the conviction is infected with plain error and constitutes a miscarriage of justice.
B. The District Court‘s Denial of the Government‘s Motion for an Additional One Point Reduction in Castro‘s Offense Level for Acceptance of Responsibility
Castro also contends that his 60-month sentence under Count Nine is procedurally unreasonable because the District Court erred in refusing to reduce his offense level under
Castro says that his argument is not precluded by the appellate waiver because it implicates one of the express exceptions contained in the waiver-namely, the exception for “constitutional claims that the relevant case law holds cannot be waived.”9 (App. at 127.) But Castro provides no relevant authority to demonstrate that the “constitutional claims” exception applies in this context. It appears instead that a district court‘s arguably erroneous calculation of a guidelines range “is pre-
Castro has failed to demonstrate that his appellate waiver does not encompass this claim or that he did not waive it knowingly and voluntarily, and he has not established that enforcement of the appellate waiver would result in a miscarriage of justice. We thus decline to exercise jurisdiction over his appeal with respect to the District Court‘s rejection of the government‘s motion for a downward departure under
C. The Procedural and Substantive Reasonableness of Castro‘s 60-Month Sentence Under Count Nine
Finally, Castro argues that, when it imposed a sentence that varied upwards by nearly 50 percent above the highest sentence recommended by the guidelines, the District Court produced a sentence that was procedurally and substantively unreasonable. According to Castro, the Court did not adequately explain why such a harsh sentence was necessary to achieve the legitimate aims of sentencing, considering all the aggravating and mitigating factors of the case, and the Court did not adequately account for Castro‘s lengthy record of good works.10 In response, the government supports the sentence as well justified in light of numerous statements by the District Court explaining the reasons for the sentence given. We agree that the sentence was well explained, but, given the flawed inclusion of Count Three in the sentencing calculus, the overall sentence must be reassessed.
Despite our well-known procedure for reviewing criminal sentences,11 the District Court‘s upward variance is unreviewable at this juncture, because, in calculating Castro‘s “combined offense level” for “multiple counts” using the method supplied by
On remand, the District Court is “free to make its own reasonable application of the
For the foregoing reasons, we will reverse Castro‘s conviction and 18-month sentence after trial on Count Three and remand to the District Court for entry of a judgment of acquittal on that count. We will also vacate Castro‘s 60-month sentence under Count Nine and remand to the District Court for resentencing on that count, using the correct guidelines range.
Notes
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
U.S. Sentencing Guidelines Manual § 3E1.1.[B]y waiving the right to appeal, a defendant necessarily waives the opportunity to challenge the sentence imposed, regardless of the merits.... A waiver of the right to appeal includes a waiver of the right to appeal difficult or debatable legal issues-indeed, it includes a waiver of the right to appeal blatant error. Waiver would be nearly meaningless if it included only those appeals that border on the frivolous.... While it may appear unjust to allow criminal defendants to bargain away meritorious appeals, such is the necessary consequence of a system in which the right to appeal may be freely traded.
Khattak, 273 F.3d at 561-62 (internal quotation marks omitted).