NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                              ________________

                                 No. 10-1156
                              ________________

                       UNITED STATES OF AMERICA

                                       v.

               RASHAWN EUGENE BOLTON, a/k/a Shawn Jeter

                       Rashawn Eugene Bolton, Appellant
                             ________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                     (D.C. Criminal No. 2-09-cr-00074-001)
                  District Judge: The Honorable Alan N. Bloch
                                _______________

                   Submitted Under Third Circuit LAR 34.1(a)
                               October 21, 2010

   BEFORE: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges.

                          (Filed: November 19, 2010)

                               _______________

                          OPINION OF THE COURT
                              _______________


NYGAARD, Circuit Judge.
       Because this opinion is wholly without precedential value we write briefly for the

benefit of the parties, presuming their familiarity with the facts and procedural history of

this case. Bolton pleaded guilty to distribution and possession with intent to distribute

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). The District

Court sentenced him to sixty months of imprisonment, three years of supervised release,

and a special assessment of $100. We will dismiss Bolton’s appeal of the sentence.

       Bolton pleaded guilty to one count of the three-count indictment. Under the terms

of the plea agreement, absent a government appeal, Bolton waived his right to appeal the

sentence unless: “the sentence exceeds the applicable statutory limits set forth in the

United States Code,” or “the sentence unreasonably exceeds the guideline range

determined by the Court under the Sentencing Guidelines.” Plea Agreement 3, ECF No.

30. As a result of his plea, the government agreed: that it would dismiss the other two

counts of the indictment; that the amount of cocaine base involved was at least 50 grams,

but less than 150 grams; and, that the conditions of 18 U.S.C. § 3553(f) (the safety valve)

were met.

       The Sentencing Guidelines range for Bolton’s offense was between fifty-seven

and seventy-one months of imprisonment. The statutory minimum was ten years of

imprisonment. Therefore, the sixty-month sentence that Bolton received was well below

the mandatory term—due to the safety valve provision—and at the low end of the

Guidelines range calculated by the District Court. It is clear that the conditions of

Bolton’s plea agreement permitting him to appeal have not been satisfied. As a result,

the focus of our review is upon the threshold issue of the validity of his appellate waiver.

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       Where a person knowingly and voluntarily waives his right to appeal, we

generally do not exercise our jurisdiction to review the merits of the appeal “unless the

result would work a miscarriage of justice.” United States v. Gwinnett, 

,

203 (3d Cir. 2007). Our review of the record reveals that the District Court took great

care to ensure, on the record, that Bolton was fully cognizant, both, of his right to appeal

and of the fact that he was agreeing to give up this right. He affirmatively acknowledged

that he comprehended the right and the waiver. Moreover, the District Court’s colloquy

included an examination of the voluntariness of his consent to the agreement. It correctly

concluded that Bolton acted on his own volition. We also note that Bolton’s competence

to plead guilty and to understand the agreement was never at issue. Finally, nothing in

the record supports a conclusion that our decision to dismiss Bolton’s appeal would

“work a miscarriage of justice.”1 

reasons, we conclude that Bolton’s waiver of his right to appeal was

valid and is effective. Accordingly, we decline to exercise jurisdiction and we will

dismiss his appeal.




1
 Bolton complains that the District Court treated the Sentencing Guidelines as
mandatory. Yet, the District Court affirmatively stated that the sentence would be the
same whether or not the Guidelines were mandatory. Additionally, the basis for the
sentence was clearly explained and well-reasoned. We therefore conclude that any error
was harmless and we do not find any miscarriage of justice in the District Court’s
sentence. U.S. v. Booker, 

, 268 (2005).
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