Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2880




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"USA v. Bielewicz" (2008). 2008 Decisions. Paper 118.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/118


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-2880


                          UNITED STATES OF AMERICA

                                          v.

                                SCOTT BIELEWICZ,
                                              Appellant




               Appeal from the Order of the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Crim. No. 06-cr-00044)
                  District Judge: Honorable David Stewart Cercone

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                               on November 20, 2008
                                  ____________

            Before: FUENTES, HARDIMAN, and GARTH, Circuit Judges

                             (Filed: December 12, 2008 )




                                      OPINION


FUENTES, Circuit Judge:

      Scott Bielewicz appeals from his 18-month sentence following a guilty plea for

bank fraud. He was released from custody on August 9, 2008, at which time he began a
four-year period of supervised release. The government contends that Bielewicz waived

his right to appeal the sentencing issues he now raises and that, in any event, the District

Court properly calculated his sentence and the sentence was reasonable. Because we

conclude that Bielewicz knowingly and voluntarily waived his right to appeal his

sentence, we will dismiss Bielewicz’s appeal.

       Bielewicz is no longer incarcerated. Therefore, we must first examine whether we

have jurisdiction over Bielewicz’s appeal under Article III of the United States

Constitution, which extends jurisdiction only to actual cases or controversies. U.S.

CONST. ART. III, § 2; Spencer v. Kemna, 

, 7 (1998). In United States v.

Jackson, we held that “[a] defendant who is serving a term of supervised release and

challenges only his completed sentence of imprisonment must show collateral

consequences” to present a live case or controversy. 

, 241 (3d Cir. 2008).

In Jackson, we held that collateral consequences include “the possibility of a credit for

improper imprisonment against a term of supervised release.” 

argues that his sentence was unreasonably long, which could result in a credit against his

term of supervised release, we conclude that this case is not moot.

       We must now determine whether Bielewicz waived his right to appeal the

reasonableness of his sentence by entering into his plea agreement, which contained

express language that prohibits Bielewicz from appealing his sentence, with two limited

exceptions. Those exceptions apply only if his sentence either exceeded the applicable


                                              2
statutory limits set forth in the United States Code, or if the sentence unreasonably

exceeded the guideline range determined by the District Court under the United States

Sentencing Guidelines. If we determine that Bielewicz’s waiver was knowing and

voluntary, and that neither of the exceptions apply, we can decline to exercise our

jurisdiction over the appeal. United States v. Gwinnett, 

, 203 (3d Cir. 2007);

see also 

.

       On December 5, 2006, Bielewicz appeared at a hearing in the District Court to

plead guilty to count one of the indictment. He agreed to the factual basis of count one,

bank fraud, and he also acknowledged responsibility for the remaining counts in the

indictment.

       The District Court then reviewed the terms of the plea agreement, and explained

them in their entirety to Bielewicz, including the waiver and its exceptions. The District

Court asked Bielewicz if he understood and agreed to the terms of the plea agreement,

and Bielewicz responded affirmatively. The District Court then asked Bielewicz if he

entered the plea voluntarily, free of coercion and intimidation. Bielewicz confirmed that

he entered the agreement of his own free will because he believed it was in his best

interest to do so. The District Court concluded that Bielewicz was competent and

understood his rights and potential penalties, and that he made a “knowing, voluntary and

informed decision to enter a guilty plea” to the charge of bank fraud. After examining the

record of the plea colloquy, we are satisfied that Bielewicz understood the consequences



                                             3
of his plea agreement, and that his decision to plead guilty was knowing and voluntary.

       We further conclude that neither of the exceptions listed in the plea agreement

apply. Bielewicz received a sentence of 18 months, which is at the bottom of the

guideline range established by the District Court. In addition, the sentence does not run

afoul of statutory limits. Because we find that Bielewicz waived his right to appeal the

reasonableness of his sentence, we will decline to exercise jurisdiction and will dismiss

the appeal.1




   1
    Because we dismiss the appeal based on Bielewicz’s waiver, we need not address the
other issues he raises on appeal.

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