Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2007

USA v. Garner
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3330




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"USA v. Garner" (2007). 2007 Decisions. Paper 524.
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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT



                       No. 06-3330


            UNITED STATES OF AMERICA

                             v.

MELISSA GARNER, also known as, MELISSA GREBAUSKI

                                  Melissa Garner,
                                        Appellant



      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                (D.C. No. 06-cr-00050-2)
           District Judge: Hon. James T. Giles


        Submitted under Third Circuit LAR 34.1(a)
                    on July 13, 2007


 Before: SLOVITER, ALDISERT and ROTH, Circuit Judges

             (Opinion filed August 29, 2007 )



                    O P I N I O N
ROTH, Circuit Judge:

       Melissa Garner was charged with one count of conspiracy to commit bank

embezzlement, identity theft, and bank fraud, in violation of 18 U.S.C. § 371. She pleaded

guilty pursuant to a written plea agreement, which included a waiver of her rights to appeal

or collaterally attack her conviction and sentence.

       The appellate waiver contained four limited exceptions: (1) if the government

appealed from the District Court’s sentence, Garner could appeal as well; (2) if the

government did not appeal, Garner could appeal if (a) her sentence exceeded the statutory

maximum, (b) the District Court erroneously departed upwards from the Guideline range, or

(c) the District Court, pursuant to Booker, imposed an unreasonable sentence above the final

Guideline range as determined by the court. At the plea colloquy, the District Court reviewed

these provisions with Garner and assured that she entered the plea knowingly and

intelligently.

       The District Court sentenced Garner to 36 months imprisonment, which was within

the calculated Guideline Range of 33-41 months. Garner timely appealed. With new

counsel, Garner now argues that her trial counsel was constitutionally ineffective for failing

to object to certain disputed sections of the presentence report.

       We have no jurisdiction over this appeal because none of the appellate waiver

exceptions provided for in the plea agreement apply to this case. See United States v.

Khattak, 

, 561-63 (3d Cir. 2001). Although “there may be an unusual


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circumstance where an error amounting to miscarriage of justice may invalidate the waiver,”

no such circumstance exists here. In any case, we usually defer ineffectiveness

assistance of counsel claims to collateral attack, except under one “narrow exception” – i.e.,

“when the record is sufficient to allow determination of that issue.” That exception is not

applicable to this case. United States v. Thornton, 

, 271 (3d Cir. 2003).

       We therefore grant the government’s motion to enforce Garner’s appellate waiver and

we will dismiss the appeal for lack of appellate jurisdiction. See United States v. Lockett, 

, 212-13 (3d Cir. 2005).




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