NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 24-1016 _______________
UNITED STATES OF AMERICA
v.
KHALIL VANCE, Appellant _______________
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:23-cr-00520-001) District Judge: Honorable Stanley R. Chesler _______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 18, 2025 _______________
Before: CHAGARES, Chief Judge, BIBAS, and RENDELL, Circuit Judges
(Filed: February 19, 2025) _______________
OPINION* _______________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.
Khalil Vance pled guilty to one count of unlawful possession of a firearm.
Pursuant to his plea agreement, Vance agreed to waive his appellate rights if the District
Court sentenced him to a term of imprisonment of 37 months or less. Vance was later
sentenced to 37 months of imprisonment. He now appeals and argues that the
Government breached the plea agreement. Because we conclude that no such breach
occurred, we hold that the appellate-waiver provision of Vance’s plea agreement is
enforceable and will affirm.
I.1
Vance was charged in the United States District Court for the District of New
Jersey with one count of unlawful possession of a firearm and ammunition by a convicted
felon in violation of 18 U.S.C. § 922(g)(1). Vance agreed to plead guilty to that charge
under a plea agreement, in which Vance and the Government agreed that the applicable
Sentencing Guidelines offense level was 17. The parties stipulated that they would not
seek an adjustment or departure from the Guidelines range corresponding to (a) an
offense level of 17 and (b) “the criminal history category that the sentencing judge
applie[d]” at sentencing, although either party could request a variance from that range.
Appendix (“App.”) 68. The plea agreement also contained a mutual waiver of appellate
rights: the Government agreed not to challenge any sentence of 30 months or more, and
Vance agreed not to challenge any sentence of 37 months or less.
1 We write primarily for the parties, and so we recite only the facts necessary to decide the case.
2 At the plea hearing, the District Court reviewed the terms of the plea agreement
with Vance, including the appellate-waiver provision:
THE COURT: Now, in your plea agreement you give up the right to bring an appeal or other collateral challenge to your sentence under certain circumstances. In particular, if the sentence does not exceed 37 months you give up your right to bring any such challenge. Do you understand that?
THE DEFENDANT: Yes.
App. 32. The District Court accepted Vance’s waiver of his appellate rights and, after
additional questioning, accepted Vance’s guilty plea.
At sentencing, the District Court calculated the offense level to be 19 and Vance’s
criminal history category to be IV, resulting in a Guidelines range of 46 to 57 months of
imprisonment. Vance’s counsel asked the District Court to vary downward to “the terms
of the plea agreement” by using a “sentencing range of 30 to 37 months.” App. 44. The
Government, however, rejected this characterization of the “negotiated . . . range” under
the plea agreement. Id. The Government argued instead that “the terms of th[e] plea
agreement” yielded a range of 37 to 46 months of imprisonment, which corresponded to
the parties’ agreed-upon offense level of 17 and the District Court’s calculation of the
criminal history category. App. 50. The Government requested “a sentence of 46
months [of] imprisonment.” App. 53.
The District Court varied downward and sentenced Vance to a term of 37 months,
which the District Court described as “the bottom of . . . the guideline range that the
parties were recommending.” App. 57. Vance timely appealed.
3 II.2
Vance argues that the Government breached the plea agreement by seeking a
sentence above the parties’ agreed-upon sentencing range, while the Government
contends that Vance’s appeal is barred by the appellate-waiver provision of the plea
agreement. We agree that Vance’s clear, knowing, and voluntary waiver of appellate
rights under the plea agreement forecloses his appeal.
We review the legality of the plea agreement’s appellate-waiver provision de
novo. United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001). Such provisions
foreclose an appeal when the issues raised on appeal fall within the scope of the waiver,
the waiver was knowingly and voluntarily agreed to, and enforcing the waiver would not
work a miscarriage of justice. United States v. Banks, 743 F.3d 56, 58 (3d Cir. 2014).
These waivers are unenforceable, however, “if the government breaches its own
obligations under [the] plea agreement.” United States v. Schwartz, 511 F.3d 403, 405
(3d Cir. 2008). Because Vance does not contest the scope of the appellate waiver, argue
that it was not knowing and voluntary, or claim that enforcement would work a
miscarriage of justice, the only question we must address is whether the Government
breached the terms of the plea agreement.
We apply plain error review to Vance’s claim of breach because he did not
preserve that issue in the District Court. A party preserves an issue for appeal by
“informing the [district] court — when the court ruling or order is made or sought — of
2 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction under 18 U.S.C. § 3742(a).
4 the action the party wishes the court to take, or the party’s objection to the court’s action
and the grounds for that objection.” Puckett v. United States, 556 U.S. 129, 135 (2009)
(quoting Fed. R. Crim. P. 51(b)). But Vance “wait[ed] until his appeal to allege a
violation of his plea agreement,” so that legal issue was not preserved and is subject to
plain error review by this Court. United States v. Dahmen, 675 F.3d 244, 247–48 (3d
Cir. 2012).
We construe plea agreements against the Government and focus on “what the
defendant reasonably understood” when entering his guilty plea, United States v. Miller,
833 F.3d 274, 284 (3d Cir. 2016), but there is no defensible way to construe Vance’s plea
agreement as inconsistent with the Government’s conduct at sentencing. The plea
agreement prohibited the Government from seeking an adjustment or departure from the
sentencing range defined by the agreed-upon “Total Offense Level” of 17, and “the
criminal history category . . .
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 24-1016 _______________
UNITED STATES OF AMERICA
v.
KHALIL VANCE, Appellant _______________
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:23-cr-00520-001) District Judge: Honorable Stanley R. Chesler _______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 18, 2025 _______________
Before: CHAGARES, Chief Judge, BIBAS, and RENDELL, Circuit Judges
(Filed: February 19, 2025) _______________
OPINION* _______________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.
Khalil Vance pled guilty to one count of unlawful possession of a firearm.
Pursuant to his plea agreement, Vance agreed to waive his appellate rights if the District
Court sentenced him to a term of imprisonment of 37 months or less. Vance was later
sentenced to 37 months of imprisonment. He now appeals and argues that the
Government breached the plea agreement. Because we conclude that no such breach
occurred, we hold that the appellate-waiver provision of Vance’s plea agreement is
enforceable and will affirm.
I.1
Vance was charged in the United States District Court for the District of New
Jersey with one count of unlawful possession of a firearm and ammunition by a convicted
felon in violation of 18 U.S.C. § 922(g)(1). Vance agreed to plead guilty to that charge
under a plea agreement, in which Vance and the Government agreed that the applicable
Sentencing Guidelines offense level was 17. The parties stipulated that they would not
seek an adjustment or departure from the Guidelines range corresponding to (a) an
offense level of 17 and (b) “the criminal history category that the sentencing judge
applie[d]” at sentencing, although either party could request a variance from that range.
Appendix (“App.”) 68. The plea agreement also contained a mutual waiver of appellate
rights: the Government agreed not to challenge any sentence of 30 months or more, and
Vance agreed not to challenge any sentence of 37 months or less.
1 We write primarily for the parties, and so we recite only the facts necessary to decide the case.
2 At the plea hearing, the District Court reviewed the terms of the plea agreement
with Vance, including the appellate-waiver provision:
THE COURT: Now, in your plea agreement you give up the right to bring an appeal or other collateral challenge to your sentence under certain circumstances. In particular, if the sentence does not exceed 37 months you give up your right to bring any such challenge. Do you understand that?
THE DEFENDANT: Yes.
App. 32. The District Court accepted Vance’s waiver of his appellate rights and, after
additional questioning, accepted Vance’s guilty plea.
At sentencing, the District Court calculated the offense level to be 19 and Vance’s
criminal history category to be IV, resulting in a Guidelines range of 46 to 57 months of
imprisonment. Vance’s counsel asked the District Court to vary downward to “the terms
of the plea agreement” by using a “sentencing range of 30 to 37 months.” App. 44. The
Government, however, rejected this characterization of the “negotiated . . . range” under
the plea agreement. Id. The Government argued instead that “the terms of th[e] plea
agreement” yielded a range of 37 to 46 months of imprisonment, which corresponded to
the parties’ agreed-upon offense level of 17 and the District Court’s calculation of the
criminal history category. App. 50. The Government requested “a sentence of 46
months [of] imprisonment.” App. 53.
The District Court varied downward and sentenced Vance to a term of 37 months,
which the District Court described as “the bottom of . . . the guideline range that the
parties were recommending.” App. 57. Vance timely appealed.
3 II.2
Vance argues that the Government breached the plea agreement by seeking a
sentence above the parties’ agreed-upon sentencing range, while the Government
contends that Vance’s appeal is barred by the appellate-waiver provision of the plea
agreement. We agree that Vance’s clear, knowing, and voluntary waiver of appellate
rights under the plea agreement forecloses his appeal.
We review the legality of the plea agreement’s appellate-waiver provision de
novo. United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001). Such provisions
foreclose an appeal when the issues raised on appeal fall within the scope of the waiver,
the waiver was knowingly and voluntarily agreed to, and enforcing the waiver would not
work a miscarriage of justice. United States v. Banks, 743 F.3d 56, 58 (3d Cir. 2014).
These waivers are unenforceable, however, “if the government breaches its own
obligations under [the] plea agreement.” United States v. Schwartz, 511 F.3d 403, 405
(3d Cir. 2008). Because Vance does not contest the scope of the appellate waiver, argue
that it was not knowing and voluntary, or claim that enforcement would work a
miscarriage of justice, the only question we must address is whether the Government
breached the terms of the plea agreement.
We apply plain error review to Vance’s claim of breach because he did not
preserve that issue in the District Court. A party preserves an issue for appeal by
“informing the [district] court — when the court ruling or order is made or sought — of
2 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction under 18 U.S.C. § 3742(a).
4 the action the party wishes the court to take, or the party’s objection to the court’s action
and the grounds for that objection.” Puckett v. United States, 556 U.S. 129, 135 (2009)
(quoting Fed. R. Crim. P. 51(b)). But Vance “wait[ed] until his appeal to allege a
violation of his plea agreement,” so that legal issue was not preserved and is subject to
plain error review by this Court. United States v. Dahmen, 675 F.3d 244, 247–48 (3d
Cir. 2012).
We construe plea agreements against the Government and focus on “what the
defendant reasonably understood” when entering his guilty plea, United States v. Miller,
833 F.3d 274, 284 (3d Cir. 2016), but there is no defensible way to construe Vance’s plea
agreement as inconsistent with the Government’s conduct at sentencing. The plea
agreement prohibited the Government from seeking an adjustment or departure from the
sentencing range defined by the agreed-upon “Total Offense Level” of 17, and “the
criminal history category . . . the sentencing judge applie[d].” App. 68. Those two inputs
yielded a range of 37 to 46 months, and the Government sought a sentence within that
range. Although Vance claims that he believed the agreement provided for a sentence of
30 to 37 months based on a lower anticipated criminal history category, that belief is
neither reasonable nor a basis to ignore the unambiguous appellate-waiver provision in
the plea agreement, see, e.g., App. 69 (“The [appellate-waiver] provisions of this
paragraph bind the parties even if the sentencing judge employs a Guidelines analysis
different from the one above.”).3
3 Even if the parties “anticipated that [Vance] would have a Criminal History Category III,” App. 50, that understanding is not reflected in the plea agreement, in which the parties
5 Vance also claims that the Government breached the agreement by emphasizing
the seriousness of his offense and damaging facts about his criminal history at sentencing.
But the plea agreement allowed the Government to “provide the sentencing judge . . . all
law and information relevant to sentencing, favorable or otherwise.” App. 64. So
informing the sentencing judge about the details of Vance’s current offense and past
conduct — which were relevant to his appropriate sentence — did not breach the deal.
In sum, we hold that Vance cannot avoid the appellate-waiver provision of his plea
agreement. We conclude that there was no breach by the Government and thus the
District Court did not commit “plain error” at sentencing. Dahmen, 675 F.3d at 248. In
the absence of any apparent breach, we hold that the appellate-waiver provision of
Vance’s plea agreement is enforceable. That provision states that Vance agreed to waive
his right to challenge his sentence “[i]f the term of imprisonment d[id] not exceed 37
months.” App. 68. Vance received a 37-month sentence, App. 58, and therefore his
current challenge is barred.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
agreed to a sentencing range based on “the criminal history category that the sentencing judge applies,” App. 68. The parties also agreed that they could “seek a variance from that Guidelines range” regardless, which further weakens Vance’s claim of breach. Id.