United States of America v. Bruce A. Rodriguez

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3116
___________
UNITED STATES OF AMERICA
v.
BRUCE A. RODRIGUEZ,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 08-cr-00559-001
(Honorable James Knoll Gardner)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2012
Before: SCIRICA, ROTH and BARRY, Circuit Judges.
(Filed: October 2, 2012)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Bruce Rodriguez appeals this 72 month sentence following a guilty plea to one
count of distribution of cocaine, and one count of possession of cocaine with intent to
distribute, 21 U.S.C. § 841(a)(1), and one count of possession of a firearm in furtherance

-- 1 of 7 --

2
of a drug trafficking crime, 18 U.S.C. § 924(c)(1). We will enforce Rodriguez‟s waiver of
his right to appeal and affirm the judgment of the District Court.
I.
On February 7, 2008, Rodriguez sold 28 grams of cocaine to an undercover police
detective and a cooperating informant in Reading, Pennsylvania. Officers arrested
Rodriguez and searched his home, where they located two handguns, ammunition for the
guns, a stun gun, assorted drug paraphernalia, 67 grams of cocaine, and $28,773 in cash,
including some of the bills used in the drug transaction.
Rodriguez signed a written guilty plea agreement and agreed to cooperate with the
government. In return, the government agreed to file a motion for a departure from the
Sentencing Guidelines under U.S.S.G. § 5K1.1 and for imposition of a sentence below
any mandatory minimum term of imprisonment under 18 U.S.C § 3553(e) if it
determined, in its sole discretion, Rodriguez had provided “complete and substantial
assistance in the investigation or prosecution of another person who has committed an
offense.”
The plea agreement also contained a waiver of Rodriguez‟s right to appeal.
Paragraph 9 reads:
In exchange for the undertakings made by the government in entering this
plea agreement, the defendant voluntarily and expressly waives all rights to
appeal or collaterally attack the defendant‟s conviction, sentence, or any
other matter relating to this prosecution, whether such right to appeal or
collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28
U.S.C. § 2255, or any other provision of law. This waiver is not intended
to bar the assertion of constitutional claims that the relevant case law holds
cannot be waived.

-- 2 of 7 --

3
a. Notwithstanding the waiver provision above, if the government
appeals from the sentence, then the defendant may file a direct
appeal of his sentence.
b. If the government does not appeal, then notwithstanding the waiver
provision set forth in this paragraph, the defendant may file a direct
appeal but may raise only claims that:
(1) the defendant‟s sentence on any count of conviction exceeds
the statutory maximum for that count as set forth in paragraph
6 above;
(2) the sentencing judge erroneously departed upward pursuant to
the Sentencing Guidelines;
(3) the sentencing judge, exercising the Court‟s discretion
pursuant to United States v. Booker, 543 U.S. 220 (2005),
imposed an unreasonable sentence above the final Sentencing
Guideline range determined by the Court; and/or
If the defendant does appeal pursuant to this paragraph, no issue may be
presented by the defendant on appeal other than those described in this
paragraph.
The District Court conducted a Rule 11 colloquy during the change of plea
hearing. Rodriguez testified he signed the guilty plea agreement, his counsel had fully
explained the charges against him, and he understood his right to trial. The prosecution
summarized the plea agreement in full, and Rodriguez told the court he understood it.
The court offered a lengthy explanation of the rights of appeal ordinarily enjoyed by
criminal defendants. Rodriguez affirmed that he understood those rights and knew that by
signing the waiver, he abandoned them with limited and specific exceptions. The court
emphasized to Rodriguez the government would only file a departure motion if satisfied
with his cooperation. Furthermore, without a departure motion, the court could not
impose a sentence below the mandatory minimum sentence requirements. The court
concluded Rodriguez was competent and his waiver of the right to appeal was knowing
and voluntary.

-- 3 of 7 --

4
Following his guilty plea, the government determined Rodriguez‟s cooperation
was insufficient. The government had told Rodriguez, before he signed the plea
agreement, it was only interested in information about persons trafficking quantities of
narcotics greater than or equal to those dealt by Rodriguez. After signing the plea
agreement, Rodriguez provided the government information about seven people, four of
whom he had engaged in drug deals with. Rodriguez alleged the remaining three were
narcotics dealers, but he had no direct knowledge of their activities. Rodriguez also told
the authorities his narcotics supplier would cooperate with the government on
Rodriguez‟s behalf. That supplier met once with the government and, although he
promised to cooperate, the supplier failed to attend any additional meetings and was not
heard from again. It is undisputed the government initiated no investigations based on
information provided by Rodriguez.
When the government informed Rodriguez it did not intend to submit a downward
motion on his behalf, he filed a motion to compel the government to do so. Both parties
offered testimony at a hearing. There was no factual dispute between the parties
concerning the nature of Rodriguez‟s cooperation and the content of the information he
provided. The District Court denied Rodriguez‟s motion to compel because the
government, exercising its sole discretion under the plea agreement, determined his
cooperation was unsatisfactory. The cooperation led to no investigations, and none of the
information provided by Rodriguez pertained to targets sought by the government.
Accordingly, the court found Rodriguez had not “met his burden of demonstrating that
the government‟s decision was based on anything other than an honest evaluation of

-- 4 of 7 --

5
assistance.” The court sentenced Rodriguez to 72 months‟ imprisonment, the low end of
the Guidelines range, and monetary penalties of $3300. Rodriguez filed a timely notice of
appeal.1
II.
Criminal defendants may waive constitutional and statutory rights in plea
agreements as long as the waiver is voluntary and with knowledge of the nature and
consequences of the waiver. United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008)
(citing Town of Newton v. Rumery, 480 U.S. 386, 393 (1987)). We have enforced waivers
of appeals “if entered into knowingly and voluntarily, unless they work a miscarriage of
justice.” United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001). We will review the
merits of an appeal despite an appellate waiver if the appeal implicates an exception
listed in the plea agreement. United States v. Goodson, 544 F.3d 529, 536 (3d Cir. 2008).
The appellate waiver is entered into knowingly where the terms of the agreement
are explained to the defendant and the defendant signed the agreement, acknowledging he
understood the terms. Mabry, 536 F.3d at 238-39. To enter into the agreement
voluntarily, the defendant must not be coerced or misled into signing the agreement. Id.
at 239.
Here, the government points to Rodriguez‟s signature on the plea agreement and
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007)
(holding the court of appeals had subject matter jurisdiction notwithstanding a
defendant‟s waiver of appellate rights in a plea agreement). Our review of the validity
and applicability of the appellate waiver in Rodriguez‟s plea agreement is de novo.
United States v. Jackson, 523 F.3d 234, 237 (3d Cir. 2008).

-- 5 of 7 --

6
the Rule 11 colloquy at the change of plea hearing to indicate Rodriguez‟s waiver was
knowing and voluntary. Rodriguez does not dispute this, and the record indicates
Rodriguez‟s waiver was knowing and voluntary. Rodriguez testified he had signed the
agreement. The prosecution summarized the plea agreement orally, and Rodriguez
confirmed he understood it. The District Court explained to Rodriguez in detail the
different grounds for appeal available to him absent a waiver. The court then explained
the effect his waiver would have on his right to appeal, and Rodriguez told the court he
understood. There was nothing to suggest a lack of knowledge or volition.
Enforcing Rodriguez‟s appellate waiver does not give rise to a miscarriage of
justice. In Khattak, we recognized “[t]here may be an unusual circumstance where an
error amounting to a miscarriage of justice may invalidate the waiver.” Khattak, 273 F.3d
at 562. Although we declined to delineate specific circumstances, we identified certain
factors to determine whether enforcing the waiver creates a miscarriage of justice. Id. at
563. Those factors include:
[T]he 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, 26 (1st Cir. 2001)). In United States v.
Wilson, 429 F.3d 455, 458 (3d Cir. 2005), we elaborated that the miscarriage of justice
exception “„will be applied sparingly and without undue generosity.‟” Id. (quoting Teeter,
257 F.3d at 26). A miscarriage of justice is not created merely because the appellate
waiver bars a meritorious claim. See Khattak, 273 F.3d at 561-62.

-- 6 of 7 --

7
Rodriguez presents no persuasive argument that enforcing the waiver would create
a miscarriage of justice. There is no evidence he signed the plea agreement as a result of
coercion. The District Court sought and received assurances from Rodriguez that he had
not been coerced or misled into signing the plea agreement through oral promises.
Moreover, the gravity and the impact of the alleged error below are insignificant. The
District Court stated even if it compelled the government to file a motion for downward
departure, it would not grant the motion because it found Rodriguez‟s cooperation
insufficient.
Nor does Rodriguez‟s appeal implicate any of the exceptions to the appellate
waiver. The plea agreement allows Rodriguez to appeal the following: (1) a government
appeal; (2) a sentence exceeding the statutory maximum; or (3) an erroneous upward
departure from the otherwise applicable Sentencing Guidelines range. None of those
circumstances is present here. The government has not appealed, and the sentence was
below the statutory maximum and within the sentencing guidelines range.
III.
For the foregoing reasons, we will enforce the appellate waiver in the plea
agreement, and affirm the judgment of conviction and sentence.

-- 7 of 7 --