Filed: Nov. 26, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 11-26-2007 USA v. Wyckoff Precedential or Non-Precedential: Non-Precedential Docket No. 06-3931 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Wyckoff " (2007). 2007 Decisions. Paper 196. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/196 This decision is brought to you for free and open access by the Opinions of the United St
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 11-26-2007 USA v. Wyckoff Precedential or Non-Precedential: Non-Precedential Docket No. 06-3931 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Wyckoff " (2007). 2007 Decisions. Paper 196. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/196 This decision is brought to you for free and open access by the Opinions of the United Sta..
More
Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-26-2007
USA v. Wyckoff
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3931
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Wyckoff " (2007). 2007 Decisions. Paper 196.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/196
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 06-3931/07-2372
UNITED STATES OF AMERICA
v.
WESLEY WYCKOFF,
Appellant in case 06-3931
UNITED STATES OF AMERICA
v.
ANDREW J. PIERRE; a/k/a CARL CARTER
a/k/a ANDREW PETERSON; a/k/a HANDY PIERRE
Appellant in case 07-2372
On Appeal from the United States District Court
for the District of New Jersey
(D. C. Nos. 06-cr-00264-1 and 06-cr-00407)
District Judge: Hon. Stanley R. Chesler and Hon. Garrett E. Brown, Jr., Chief Judge
Submitted under Third Circuit LAR 34.1(a)
on September 24, 2007
Before: AMBRO, JORDAN and ROTH, Circuit Judges
(Opinion filed: November 26, 2007)
OPINION
ROTH, Circuit Judge:
Wesley Wykoff and Andrew Pierre appeal from the judgments of sentence, imposed
by the United States District Court for the District of New Jersey. Wykoff and Pierre claim
that the District Court abused its discretion by imposing custodial sentences that run
consecutively to their undischarged state terms of imprisonment without adequately
considering the factors in 18 U.S.C. § 3553. Because these two cases present identical
issues, they were consolidated for purposes of disposition. For the reasons stated below, we
will affirm the judgments of the District Court.
I. BACKGROUND
As the facts are well known to the parties, we give only a brief description of the
issues and procedural posture of the cases.
A. Wykoff
While Wycoff was serving a twelve-year New Jersey state sentence for armed
robbery, a one-count information was issued on April 4, 2006, charging him with conspiracy
to falsely make, forge, and counterfeit approximately $10,000 in Federal Reserve Notes
contrary to 18 U.S.C. § 471, in violation of 18 U.S.C. § 371. Wykoff agreed to plead guilty
to the information, and the plea agreement provided:
Wesely Wykoff knows that he has, and voluntarily waives, the right to file any
appeal, any collateral attack, or any other writ or motion, including but not
2
limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. §
2255, which challenges the sentence imposed by the sentencing court if that
sentence falls within the Guidelines range that results from the agreed total
Guidelines offense level of 13.
After a colloquy with Wykoff, the District Court concluded that his decision to plead guilty
was knowing, intelligent, and voluntary, and accepted his plea. The District Court sentenced
Wykoff to 33 months’ imprisonment1 to run consecutively to his undischarged term of
imprisonment imposed by the State of New Jersey. Wykoff appealed.
B. Pierre
While Pierre was serving a seven-year New Jersey state sentence for drug trafficking
offenses, a one-count indictment was issued on May 25, 2006, charging him with illegal
reentry after removal for an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)
and (b)(2). Pierre agreed to plead guilty to the indictment, and the plea agreement provided:
Andrew J. Pierre knows that he has and . . . voluntarily waives... the right to
file any appeal, any collateral attack, or any other writ or motion, including but
not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C.
§ 2255, which challenges the sentence imposed by the sentencing court if that
sentence falls within or below the Guidelines range that results from the agreed
total Guidelines offense level of 21.
1
Based on his Criminal History Category of VI, Wykoff’s total Guidelines offense
level of 13 resulted in a Guidelines range of 33 to 41 months.
3
After a colloquy with Pierre, the District Court concluded that his decision to plead guilty
was knowing, intelligent, and voluntary, and accepted his plea. The District Court sentenced
Pierre to 82 months’ imprisonment2 to run consecutively to his undischarged term of
imprisonment imposed by the State of New Jersey. Pierre appealed.
II. JURISDICTION & STANDARD OF REVIEW
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction to review a judgment of sentence under 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). See 18 U.S.C. §§ 3557, 3551.
We review a district court’s decision to impose a concurrent or consecutive sentence
for abuse of discretion. United States v. Spiers, 82 F.3d 1274, 1277 (3d Cir. 1996).
Although we retain subject matter jurisdiction over an appeal by a defendant who had signed
an appellate waiver, “we will not exercise that jurisdiction to review the merits of [such]
appeal if we conclude that [the defendant] knowingly and voluntarily waived [his] right to
appeal unless the result would work a miscarriage of justice.” United States v. Gwinnett,
483
F.3d 200, 203 (3d Cir. 2007).
III. DISCUSSION
Wykoff and Pierre concede that their appeal waivers in the plea agreements are valid
and that such waivers preclude them from filing any appeal challenging the sentence imposed
2
Based on his Criminal History Category of VI, Pierre’s total Guidelines offense level
of 21 resulted in a Guideline Range of 77 to 96 months’ imprisonment.
4
so long as the sentence falls within or below the Guidelines range that results from the agreed
upon total Guidelines offense level. See United States v. Khattak, 273 F.3d 557, 562 (3d Cir.
2001) (explaining that “waivers of appeal, if entered into knowingly and voluntarily, are
valid”). Neither Wykoff nor Pierre claims that his sentence is inconsistent with his agreed
upon total Guidelines offense level. They assert nevertheless that those waivers are not
applicable to an appeal challenging the District Court’s imposition of a consecutive, rather
than concurrent, sentence. We do not agree.
There is nothing in the record indicating that Wykoff and Pierre retained the right to
appeal the consecutive sentencing question to the exclusion of all others. In fact, the record
shows that Wykoff and Pierre anticipated the possibility that a consecutive sentence would
be imposed because each argued that the District Court should exercise its discretion to
impose a concurrent, rather than consecutive, sentence. The fact that a consecutive sentence
within the Guidelines, rather than a concurrent sentence, was imposed does not take the
sentence outside the area agreed upon in the appeal waiver.
The law is clear that “by waiving the right to appeal, a defendant necessarily waives
the opportunity to challenge the sentence imposed, regardless of its merits.” Khattak, 273
F.3d at 561. Because Wykoff and Pierre do not claim, nor do we conclude, that the waivers
are invalid or that they result in a miscarriage of justice, we do not reach the merits of their
claims. See
Gwinnett, 483 F.3d at 203, 206; see also
Khattak, 273 F.3d at 562.
IV. CONCLUSION
For reasons stated above, we will affirm the judgments of the District Court.
5
