United States of America v. Sean Nelson

Honorable Yvette Kane, Chief United States District Court Judge for the Middle*
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4721
_____________
UNITED STATES OF AMERICA
v.
SEAN NELSON,
Appellant.
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cr-520)
District Judge: Hon. Jerome B. Simandle
Submitted Under Third Circuit L.A.R. 34.1(a),
January 26, 2010
Before: FUENTES and FISHER, Circuit Judges
and KANE, District Judge.*
(Opinion Filed: March 23, 2010)
OPINION OF THE COURT

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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has1
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. “A defendant’s valid
appellate waiver does not deprive this Court of jurisdiction over the defendant’s claims,
and we retain subject matter jurisdiction over the defendant’s appeal despite the waiver.”
United States v. Jackson, 523 F.3d 234, 242 (3d Cir. 2008) (citation omitted). “We
examine the legality of waiver-of-appeals provisions de novo, as it is a question of law.”
United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001) (citation omitted).
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FUENTES, Circuit Judge:
Appellant, Sean Nelson, pled guilty to conspiracy to distribute and to possess with
intent to distribute cocaine and cocaine base. In the written plea agreement, Nelson
waived his right to appeal if his sentence fell within a specified Guidelines range. At
sentencing, the District Court imposed a sentence within that range. Nelson appeals from
the District Court’s Judgment, arguing that his appellate waiver should not be enforced as
it would work a “miscarriage of justice.” In particular, Nelson contends that the
impeachment of a witness who testified on his behalf at sentencing was unforeseen and
that certain hearsay statements made by the Government exposed the District Court to
extremely prejudicial information, rendering his sentencing proceeding unfair. For the
reasons that follow, we will enforce Nelson’s waiver of his appellate rights, decline to
reach the merits of his appeal, and affirm the District Court’s Judgment.1
I.
Because we write primarily for the parties, we only discuss the facts and
proceedings to the extent necessary for the resolution of the case.

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Nelson pled guilty to conspiracy to distribute and to possess with intent to
distribute five kilograms or more of cocaine and fifty kilograms or more of cocaine base
(“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). In his plea
agreement, Nelson waived his right to appeal if his “sentence f[ell] within or below the
Guidelines range that results from a total Guidelines offense level of 29.” (App. 14.) At
the change of plea hearing, the District Court specifically questioned Nelson about the
appellate waiver contained in the plea agreement, and Nelson confirmed that he
understood the effect of the waiver. (Id. at 43–45.)
At the sentencing hearing, defense counsel noted that a number of Nelson’s family
members were present; the District Court asked if any of them would like to speak, and
defense counsel repeated the District Court’s question. (Id. at 61.) Vincent Perry,
Nelson’s stepfather, volunteered to speak and asked for leniency on Nelson’s behalf.
Relevant to this appeal, in response to a question from the District Court, Perry stated that
he did not know that Nelson was “dealing in crack cocaine.” (Id. at 63.) Defense counsel
briefly alluded to Perry’s remarks in his closing statement.
After Nelson finished speaking, the Government asked for a conference at sidebar
and reported that Perry had been cooperating with the Government and that, contrary to
his testimony, he knew of Nelson’s involvement in drug trafficking. The Government
explained as follows:
Vincent Perry told the Court some things that we don’t believe to be
true when he told us that he didn’t know anything about Sean Nelson being

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involved in drugs, that is, he’s been cooperating with the government and he
has given explicit information about . . . Sean Nelson’s involvement in drug
trafficking over the years. Some of the information he’s given us included that
. . . Sean [was] involved in distributing crack since at least 2003. And he
talked very specifically about one incident where he drove Sean Nelson to
Felipe Telleria’s house, he described the house and described the car and it’s
an incident that happened in 2006 and that incident was captured on the
wiretap. Now, the agents did not see Vincent Perry on the surveillance from
the pole camera, but they did see the car he described during that transaction.
He said Sean Nelson bought nine ounces of cocaine from Felipe Telleria, and
that comports with several of the calls that we have on the wiretaps that were
going on that summer.
So as much as I didn’t want to bring this up, and I certainly don’t want
to make this a matter of public consumption because his cooperation has been
ongoing, although I’m not sure what the effect of this will be, it has to be
sorted out, he’s been a cooperator with the state, . . . we wouldn’t want it to
come out publicly, but I don’t want the record to stand now, as it was with the
Court, and the Court thinking that Mr. Perry was unaware of his stepson’s drug
trafficking.
(Id. at 80–81.)
The District Court asked the Government whether it “should ask [Perry] if he
wants to change any of his statements to me about his lack of knowledge, or does that just
dig things deeper?” (Id. at 81.) The Government replied that such a question “would dig
things deeper” because the courtroom was “full of drug dealers” and “it might be
dangerous” for Perry. (Id.) After further discussion with counsel, the District Court
stated that “I’m not going to hold it against Sean Nelson in any way, pretty much what
Mr. Perry has said.” (Id. at 82.) Defense counsel responded to the District Court’
statement, and the Court reiterated that it would not consider Perry’s statements in
sentencing Nelson:

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I think the important thing is that the defendant’s rights be preserved in all of
this and that I continue to believe that he should be sentenced for the
information that I have before me and nothing more, nothing less. . . . And that
means, I’ll be more explicit, that his stepfather, whether he had information
about the drug dealing or didn’t, adds nothing in that regard to what I’m
sentencing Mr. Nelson for and that is what he pled guilty to.
(Id. at 83.)
Nelson was subject to a statutory mandatory minimum sentence of 120 months’
imprisonment. The District Court concluded, however, that Nelson qualified for the
“safety valve” provision of 18 U.S.C. § 3553(f) and could be sentenced under the
mandatory minimum. With a total offense level of 27 and a criminal history category of
I, Nelson’s advisory Guidelines range was 70 to 87 months. The District Court imposed a
sentence of 78 months’ imprisonment.
On appeal, Nelson argues that this Court should not enforce his appellate waiver as
it would work a manifest injustice by preventing him from challenging the fairness of his
sentencing proceeding. He further argues that the District Court committed plain error in
failing to order the Government to turn over Perry’s prior inconsistent statements.
II.
“Waivers of appeals, if entered into knowingly and voluntarily, are valid, unless
they work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir.
2001). Nelson does not argue that his waiver was unknowing or involuntary, instead
asserting that its enforcement would result in a miscarriage of justice. Factors to consider
before “‘reliev[ing] the defendant of the waiver’” to prevent a miscarriage of justice

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include “‘the clarity of the error, its gravity, its character (e.g., whether it concerns a fact
issue, a sentencing guideline, or a statutory maximum), the impact of the error on the
defendant, the impact of correcting the error on the government, and the extent to which
the defendant acquiesced in the result.’” Id. (quoting United States v. Teeter, 257 F.3d
14, 25–26 (1st Cir. 2001)).
Nelson argues that the District Court was exposed to “extremely prejudicial
information,” specifically the Government’s hearsay statement that, according to Perry,
Nelson distributed crack cocaine since “at least 2003” when Nelson had only admitted to
a conspiracy from July 2004 to July 2006. (Nelson Br. 9–10.) The Government’s use of
hearsay to impeach Perry at sidebar does not constitute the type of “unusual circumstance
[of] an error amounting to a miscarriage of justice” contemplated by Khattak. Although
Perry’s testimony and the Government’s response at sidebar were unforeseen by the
parties, allowing Nelson’s sentence to stand unchallenged does not work a miscarriage of
justice, particularly in light of the District Court’s statement that it would not consider
Perry’s statement regarding his lack of knowledge of Nelson’s drug trafficking nor the
Government’s impeachment evidence in arriving at Nelson’s sentence. Accordingly, we
conclude that Nelson waived his right to the present appeal, and we do not reach the
merits of his remaining claim.
III.
For the foregoing reasons, we affirm the District Court’s Judgment.

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