Case Information
*1 Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges.
(Filed: April 10, 2017)
____________
OPINION
____________ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.
CHAGARES, Circuit Judge.
Defendant Kareem Sampson appeals from the District Court’s judgment of conviction and sentence. Sampson, however, waived the right to appeal as part of his guilty plea agreement. Because we find the appellate waiver to be valid and enforceable, we will dismiss Sampson’s appeal and affirm his conviction and sentence.
I.
We write solely for the parties and assume their familiarity with the facts of the case. On July 19, 2011, a grand jury indicted Sampson on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Sampson pleaded guilty to the crime at a hearing on July 11, 2014. The District Court accepted Sampson’s plea but deferred acceptance of the underlying plea agreement. On June 29, 2015, Sampson moved to withdraw his guilty plea, arguing that he should have been allowed to preserve his right to appeal the District Court’s denial of an earlier suppression motion. The District Court denied Sampson’s motion to withdraw.
Because Sampson had four prior convictions for possession with intent to deliver either cocaine or crack cocaine, his probation officer concluded in the presentence report that Sampson was an armed career criminal as defined by 18 U.S.C. § 924(e) (the “Armed Career Criminal Act” or the “ACCA”). At sentencing, Sampson objected neither to the portions of the presentence report describing his prior convictions nor the conclusion that he was an armed career criminal. He also acknowledged that he was *3 agreeing to be sentenced accordingly. On January 6, 2016, the District Court accepted the plea agreement and, pursuant to it, sentenced Sampson to fifteen years of imprisonment and a five-year term of supervised release, among other monetary penalties. Sampson filed a timely appeal.
II. Sampson argues on appeal that the statutes under which he was previously convicted were never identified at sentencing and, therefore, the record lacked sufficient evidence to sustain his designation as an armed career criminal. Before reaching the merits of Sampson’s appeal, we must address the Government’s contention that Sampson waived the right to appeal his sentence.
“[W]e will decline to exercise our jurisdiction to review the merits of an appeal
where the defendant knowingly and voluntarily waived the right to appeal.” United
States v. Jackson,
Sampson’s plea agreement provides in clear terms that he waived his “rights to
appeal or collaterally attack [his] conviction [or] sentence,” subject to limited enumerated
exceptions. App. 111-12. At the plea hearing, Sampson acknowledged that he read and
understood the plea agreement and, specifically, the provision waiving his appeal rights.
He also stated that he understood that he was stipulating to being an armed career
criminal under 18 U.S.C. § 924(e) and that he did not contest his prior convictions.
Moreover, he agreed that he was pleading guilty to an offense carrying a mandatory
sentence of at least fifteen years of imprisonment. In short, Sampson’s exchange with the
Court “amply demonstrates that the District Court took care to apprise [him] of the
consequences of the waiver and ensure that he understood the terms of the plea
agreement and entered into it willingly.” Mabry,
agreement and the colloquy satisfy us that the waiver was made knowingly and voluntarily.
We also determine that the waiver encompasses Sampson’s appeal. Sampson contends otherwise, citing a provision in the plea agreement excepting from the waiver a challenge to a sentence that exceeds the statutory maximum. Appendix (“App.”) 112. According to Sampson, it was not established at the hearing or otherwise that he qualified for designation as an armed career criminal, 18 U.S.C. § 924(e)(1), and therefore his fifteen-year sentence exceeded the ten-year statutory maximum for violation, by itself, of being a felon in possession of a gun, id. § 922(g)(1); id. § 924(a)(2). We disagree for two
reasons.
First, the plain text of the plea agreement belies Sampson’s argument that the
exception applies. Sampson reserved the right to appeal a sentence that, inter alia,
exceeds the statutory maximum “as set forth” in paragraph 8 of the agreement’s terms.
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App. 112; see also App. 69 (the Government summarizing at the plea hearing that
Sampson may on appeal “raise only a claim that the sentence imposed exceeds the
statutory maximum for that count as set forth in the agreement” (emphasis added)). The
statutory maximum set forth in paragraph 8, which outlines Sampson’s agreement that he
has three qualifying ACCA convictions, is life imprisonment. App. 110. On its face, the
exception does not cover Sampson’s present challenge concerning the evidentiary support
for the sentencing enhancement which he agreed applied to him. Cf. United States v.
Corso,
Second, there was sufficient evidence to establish that Sampson’s prior
convictions were qualifying predicate offenses. The relevant portion of the ACCA
imposes a fifteen-year minimum sentence on anyone who “violates [18 U.S.C. §] 922(g)
. . . and has three previous convictions by any court . . . for violent felony or serious drug
offense, or both.” 18 U.S.C. § 924(e)(1). A serious drug offense is defined as one “for
which a maximum term of imprisonment of ten years or more is prescribed by law.” Id.
§ 924(e)(2)(A)(ii). In determining that a defendant qualifies as an armed career criminal,
“a court may . . . confirm [his] previous convictions by relying on the terms of the plea
*7
agreement, the charging document, the transcript of colloquy between judge and
defendant, or other comparable judicial records of sufficient reliability.” United States v.
Howard,
The presentence report identifies the dates and case numbers of four prior state
convictions and notes that the convictions were for possessing with intent to deliver
cocaine. Absent objections to its findings, a court may consider the report as evidence
when determining whether a defendant qualifies as an armed career criminal. United
States v. Doe,
Finally, enforcing the waiver does not “work a miscarriage of justice.” United
States v. Khattak,
The circumstances here do not warrant bypassing Sampson’s waiver. Sampson’s
chief argument is that there lacked record support for his being designated an armed
career criminal and consequently that his sentence is unlawfully excessive. In other
words, he contends that his sentence is wrong. But by agreeing to waive his appellate
rights Sampson agreed to forgo his “right to appeal difficult or debatable legal issues”
and even “the right to appeal blatant error.” Khattak,
Ultimately, even if it were the case that there was insufficient evidence to establish
that Sampson’s prior convictions were for “serious drug offenses” — which we do not
hold — the District Court was entitled to impose the sentence to which Sampson
*9
stipulated in his plea agreement. United States v. Bernard,
2004) (“[A] sentencing court has the authority to accept a plea agreement stipulating to a sentencing factor or a provision of the sentencing guidelines that otherwise would not apply, or specifying a sentence that falls outside the applicable guidelines range.”). In his plea bargain and at his hearing, Sampson agreed that his prior convictions established that he was an armed career criminal and that he should be sentenced accordingly. He cannot now argue that the District Court erred in honoring that agreement. Holding Sampson to his promise not to appeal his sentence works no miscarriage of justice.
III.
Accordingly, faced with a valid and enforceable appellate waiver, we decline to address the merits of Sampson’s appeal. The appeal will be dismissed, and we will affirm the District Court’s judgment of conviction and sentence.
Notes
[1] The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary
review over the question of the enforceability and applicability of an appellate waiver.
See United States v. Goodson,
[2] Sampson argues separately that his guilty plea itself was not knowing and
intelligent, as is required for it to be valid, because he was not apprised of the specific
state laws the violations of which formed the basis of his designation as an armed career
criminal. He asserts this for the first time on appeal, and therefore must demonstrate
plain error. See United States v. Russell,
[3] Moreover, to allow Sampson to argue that an exception in his agreement applied
to terms to which he stipulated as part of that agreement “would be inequitable because it
would allow [Sampson] to get the benefits of [his] plea bargain, while evading the costs.”
United States v. Bernard,
[4] We have held that a conviction under Pennsylvania law “for possession with
intent to distribute cocaine is a ‘serious drug offense’ and properly serve[s] as a predicate
offense for the imposition of the fifteen-year minimum sentence under the ACCA.”
United States v. Abbott,