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


7-30-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3258




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"USA v. Russell" (2007). 2007 Decisions. Paper 682.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/682


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-3258


                           UNITED STATES OF AMERICA

                                           v.

                            JONTEE DAMON RUSSELL,

                                                      Appellant



                     Appeal from the United States District Court
                        for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 04-cr-00053-1E)
                    District Judge: Honorable Maurice B. Cohill, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 10, 2007

                   Before: RENDELL and AMBRO, Circuit Judges,
                             SHAPIRO,* District Judge

                             (Opinion filed July 30, 2007)


                                       OPINION


AMBRO, Circuit Judge



      *
       Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       Jontee Damon Russell appeals his criminal sentence imposed following a guilty plea.

He contends that the sentencing judge erred in failing to state in open court the reasons for

the imposition of his sentence, as 18 U.S.C. § 3553(c) requires. Because we conclude that

Russell knowingly and voluntarily waived his right to appeal, we affirm that sentence.

                             I. Facts and Procedural History

       As we write for the parties, only a brief summary of the pertinent facts is necessary.

In November 2004, Russell and his co-defendant, Lisa Marie Dacus, were charged in an

indictment with knowingly and unlawfully possessing with the intent to distribute and

distributing five grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B)(iii). Three months later, Russell pled guilty to one count of the above charges.

At the hearing to enter his guilty plea, Russell swore under oath that he understood the terms

of his plea agreement.

       That agreement contained a provision in which the Government would request a

reduction in Russell’s sentence if he substantially assisted law enforcement agencies in

investigating drug offenses. Dacus also agreed to provide substantial assistance to law

enforcement officials if the Government would request a downward departure in Russell’s

sentence. Importantly, in his plea agreement Russell also waived his right to appeal, subject

to two exceptions: 1) if the Government appeals, or 2) if the sentence exceeds the applicable

statutory limits or unreasonably exceeds the range determined by the Court under the federal

Sentencing Guidelines.

       In chambers before Russell’s sentencing on June 22, 2005, the Judge heard the

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Government’s § 5K1.1 motion for a downward departure based on substantial assistance.

A Special Agent for the FBI testified that Dacus had substantially assisted it but that Russell

had proved to be uncooperative. The proceedings then moved to open court, where the Judge

sentenced Russell to 60 months in prison. This sentence was a downward departure from the

70 to 87 month advisory Guidelines range contained in the presentence report, which neither

party challenged. Although explaining that he had considered the Government’s § 5K1.1

motion, the Judge never explicitly stated the reasons for the imposition of Russell’s sentence.

Though Russell did not make a contemporaneous objection to this omission, he claims this

was plain error under 18 U.S.C. § 3553(c).

                                       II. Discussion

       In United States v. Gwinnett, 

, 203 (3d Cir. 2007), we concluded that our

Court retained appellate jurisdiction over the appeal of a defendant who had signed an

appellate waiver. However, we would not review the merits of an appeal if we concluded

that the defendant knowingly and voluntarily waived that appeal, unless the result would

work a miscarriage of justice. 

must ascertain whether Russell knew and

intended without coercion to waive his right to appeal and, if so, whether that was a

miscarriage of justice.

       To make this determination, “the role of the sentencing judge is critical.” United

States v. Khattak, 

, 563 (3d Cir. 2001). The evidence on record from the Rule

11 colloquy shows that Russell voluntarily signed the appellate waiver and knew its contents.

After ascertaining that he was competent to plead, the Judge had the significant terms of the

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plea agreement, including the appellate waiver, read by counsel for the Government. App.

at 21, 29-30. The Judge then explicitly asked Russell whether this reading of the plea

agreement was consistent with his understanding of its terms. App. at 30. He responded yes.

App. at 31. Additionally, in response to the questions of the Judge, Russell swore under oath

that he was not forced to enter into the plea agreement and that he had discussed the matter

with his attorney. App. at 28, 34.

       On appeal, Russell does not contend that he was either forced to sign the waiver or

that he did not understand it. In this context, there is no question that Russell knowingly and

voluntarily agreed to the appellate waiver.

       Russell does not allege that the waiver resulted in a miscarriage of justice, and we

discern none in any event. He received a sentence that was ten months less than the

minimum 70-month sentence of the advisory Guidelines range. He appears to have received

this generous sentence, despite being uncooperative with law enforcement officials, based

solely on the substantial assistance provided by Dacus.

       Lastly, neither of the exceptions to the appellate waiver contained in Russell’s plea

agreement apply. This is not an appeal brought by the Government, and Russell’s 60-month

sentence neither exceeded the 40-year statutory maximum nor the 87-month maximum of the

Guidelines range.

       Because Russell knowingly and voluntarily waived his right to appeal, we affirm his

sentence.



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