United States v. Sade Long

564 F. App'x 674
Court of Appeals for the Third Circuit·Decided April 28, 2014·No. 11-4221·Unpublished

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge:

Sade Tenisha Long appeals her judgment of conviction entered on October 14, 2011, following her guilty plea to a charge of armed bank robbery. For the reasons set forth below, we dismiss the appeal for lack of jurisdiction.

I. 1

On June 27, 2011, following a plea agreement, Long pleaded guilty to Count 1 of an indictment that charged her with four separate counts of aiding and abetting armed bank robbery in violation of 18 U.S.C. §§ 2118(a), 2113(d), and 2. Count 1 related to Long’s involvement as a getaway driver for her co-defendant, Eric Watkins, who robbed a bank in York County, Pennsylvania, on January 5, 2011. Long here argues that there was an insufficient factual basis for her plea, and, in the alternative, claims she was not aware of the nature of the charge she pleaded guilty to.

Long’s plea agreement included an appellate waiver, which stated, “the defendant knowingly waives the right to appeal the conviction and sentence. This waiver includes any and all possible grounds for appeal, whether constitution or non-constitutional, including, but not limited to, the manner in which that sentence was determined ...” United States v. Long, No. 11-cr-48-1, Doc. 33 at 19 (M.D. Pa., June 6, 2011). Thus, we lack jurisdiction to review Long’s appeal so long as this waiver was knowing and voluntary. See United States v. Khattak, 273 F.3d 557, 563 (3d Cir.2001). Long submits that her waiver is not a bar to relief if, and only if, her guilty plea lacked a factual basis or she was not given notice of all of the elements of the charged crime — according to Long, these circumstances would demonstrate that her waiver is unenforceable because it was not entered into knowingly. The government does not contest her assertion, and so we will address the merits of her appeal in order to decide whether we have jurisdiction.

II.

Rule 11(b)(3) of the Federal Rules of Criminal Procedure requires the District Court, “before entering judgment on a guilty plea, to ‘determine that there is a factual basis for the plea.’ ” United States v. Lessner, 498 F.3d 185, 197 (3d Cir.2007) (quoting Fed. R.Crim. Proc. 11(b)(3)). To accept a guilty plea, the rule requires simply “sufficient evidence in the record as a whole to justify a conclusion of guilt.” Id.

Long has two related arguments that both focus on the “armed” element of the armed bank robbery charge to which she pleaded guilty. She concedes that she did not raise these objections below, and so they are reviewed for plain error. See Lessner, 498 F.3d at 192 (“Plain error exists only when (1) an error was commit *676 ted (2) that was plain, and (3) that affected the defendant’s substantial rights.”). We find no such error.

Long was convicted on an aiding and abetting theory. This requires, in relevant part, that Long knew that Watkins was committing armed bank robbery when she drove him away. See 18 U.S.C. § 2(a); United States v. Nolan, 718 F.2d 589, 592 (3d Cir.1983). In turn, this requires that she knew that Watkins “put[ ] in jeopardy the life of any person by the use of a dangerous weapon or device” in committing the bank robbery. 18 U.S.C. § 2113(d).

The government stated at Long’s change of plea hearing that it intended to prove the following facts if the case proceeded to trial: 1) On January 5, 2011, Watkins entered the Sovereign Bank in York County, Pennsylvania, displayed a gun, and took through threat, force, and intimidation $10,500, and then fled; and 2) Long “drove Mr. Watkins away from the bank knowing that he had robbed the bank and that he had possession of a firearm when he did so.” Long, No. 1.11-cr-48-1, Doc. 77 at 8 (M.D. Pa., June 27, 2011). The Court specifically asked Long whether she had any objection to these facts, to which she responded she did not. The Court also asked whether she was the getaway driver for Watkins on that date; whether she knew he had robbed the bank once he got into the car; and if she understood that aiding and abetting carried the same penalty as if she “went into the bank [herself] with the gun and took the money.” Id. She responded affirmatively to these questions. The Court was “satisfied that the plea ha[d] a basis in fact and contain[ed] all the elements of the crime charged.” Id. at 12.

Long’s first argument is that it was plain error for the District Court to allow her guilty plea to stand after she filed a sentencing memorandum, following her change of plea hearing, in which she protested that she did not know that Watkins was armed. We conclude that the District Court did not plainly err in determining that the facts were sufficient to raise an inference that Long was aware that Watkins used a gun in committing this offense, despite Long’s protestations to the contrary in her sentencing memorandum. See, e.g., Lessner, 498 F.3d at 197 (“There was more than sufficient evidence of [defendant’s] guilt to permit the District Court to accept her guilty plea to [obstruction of justice] even were we to assume that she disavowed an intent to impede the [criminal] investigation.”). Along the same lines, she argues that the facts show that she only became aware of the gun during flight from the robbery, when Watkins threw it from the vehicle during police pursuit. Even so, the escape was “part and parcel” of the bank robbery under 18 U.S.C. § 2113, United States v. Williams, 344 F.3d 365, 372 (3d Cir.2003), making this fact irrelevant.

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United States v. Sade Long, 564 F. App'x 674 (3d Cir. 2014).

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