NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______
No. 10-3323 ______
UNITED STATES OF AMERICA
v.
TONEY SABATER, Appellant ______
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-05-cr-00433-001) District Judge: Honorable Christopher C. Conner ______
Argued June 21, 2011 ______
Before: HARDIMAN, ALDISERT, Circuit Judges, and RESTANI, * Judge
(Filed: August 1, 2011) ______
James J. West, Esq. (Argued) James J. West 105 North Front Street Suite 205 Harrisburg, PA 17101
Counsel for Appellant
* Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation. Peter J. Smith, Esq. Christy H. Fawcett, Esq. (Argued) Theodore B. Smith, III, Esq. Office of United States Attorney 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108
Counsel for Appellee _______
OPINION _______
RESTANI, Judge.
Defendant Toney Sabater appeals the district court’s decision denying his 28
U.S.C. § 2255 motion to vacate his sentence. [Blue 10; United States v. Sabater, No.
1:05-cr-00433-001, 2010 U.S. Dist LEXIS 73226, at *2 (M.D. Pa. July 21, 2010).]
Sabater alleges that he did not knowingly and voluntarily acquiesce to the appellate
waiver in his plea agreement and that to enforce the waiver would constitute manifest
injustice. [Blue 14, 18.] For the following reasons, we will affirm the district court’s
judgment.
Because we write for the parties, we recount only the essential facts and
procedural history. In November 2005, Sabater was charged with conspiracy to distribute
and possess with intent to distribute—as well as distribution and possession with intent to
distribute—500 grams or more of cocaine hydrochloride. [Presentence Investigation
Report (“PSR”) ¶ 1.] In June 2006, Sabater signed a plea agreement whereby the
2 Government dismissed the original charges and Sabater pled guilty to two superceding
counts of interstate travel to facilitate drug trafficking with a maximum sentence of ten
years. [Plea Agreement, United States v. Sabater, D.C. 1-05-cr-00433-001, Docket No.
30, ¶¶ 1–2 (M.D. Pa.).] In exchange, Sabater waived his right to direct appeal or to
collateral challenge of his conviction and sentence under 28 U.S.C. § 2255. [Id. ¶ 13;
Blue 4.] At sentencing, in November 2006, the district court found Sabater’s criminal
history status to be VI rather than V based in part on a 1994 New Jersey conviction,
yielding a sentencing guideline range of 92 to 115 months. [Blue 4; Sabater, 2010 U.S.
Dist. LEXIS 73226, at *10–11; see U.S. Sentencing Guidelines Manual Sentencing
Table, available at
http://www.ussc.gov/Guidelines/2010_guidelines/Manual_PDF/Chapter_5.pdf.] Sabater
was sentenced to 115 months imprisonment and Sabater appealed under 18 U.S.C. §
3742. See United States v. Sabater, 270 F. App’x 219, 220 (3d Cir. 2008) (not
precedential) (“Sabater I”). In March 2008, we held that the waiver was knowing and
voluntary and that no manifest injustice was demonstrated by the facts before the court.
Id. at 220–21.
In June 2008, the Superior Court of New Jersey vacated and dismissed the 1994
New Jersey conviction with prejudice. [App. at 66a–67a.] In July 2009, Sabater moved
to vacate, set aside, or correct his sentence on the basis that he was prejudiced by
ineffective assistance of counsel and that, despite the waiver, the vacatur of the New
3 Jersey conviction should result in lowering his criminal history category from VI to V,
and therefore he should be resentenced based on a guideline range of 84 to 105 months.
[Blue 4, 10, 14; Red 4; Sabater, 2010 U.S. Dist LEXIS 73226, at *2.] The district court
held that Sabater’s actions were knowing and voluntary and noted that Sabater’s sentence
could take into account the vacated New Jersey conviction without creating manifest
injustice. [Sabater, 2010 U.S. Dist LEXIS 73226, at *5–6, 14–15.] Sabater now claims
that the waiver was not knowing and voluntary and to enforce it would constitute
manifest injustice.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and § 2255 to review the final
judgment of a U.S. District Court. United States v. Mabry, 536 F.3d 231, 236 (3d Cir.
2008). We review the legality of waivers of appeal de novo. United States v. Khattak,
273 F.3d 557, 560 (3d Cir. 2001).
A defendant may waive the right to direct and collateral attack, provided the
waivers are “entered into knowingly and voluntarily, and their enforcement does not
work a miscarriage of justice.” 1 Mabry, 536 F.3d at 237. “Knowing and voluntary”
indicates that “the defendant actually does understand the significance and consequences”
of the waiver and that “the decision is uncoerced.” Fahy v. Horn, 516 F.3d 169, 185 (3d
Cir. 2008) (quoting Godinez v. Moran, 509 U.S. 389, 401 n. 12 (1993)) (internal
1 Under our precedents, “manifest injustice” and “miscarriage of justice” have been used interchangeably. See United States v. Gwinnett, 483 F.3d 200, 205–06 (3d 4 quotation marks omitted). We have already held that Sabater knowingly and voluntarily
waived his right to appeal. Sabater I, 270 F. App’x at 221. Sabater signed the plea
agreement and was specifically questioned about the agreement in court, where Sabater
repeatedly responded in the affirmative, dispelling any concerns as to the legal terms used
in the agreement. Id. at 220–21. A review of the plea agreement and Sabater’s responses
in court reveals no significant difference between his waiver of appeal rights and his
waiver of the right to collaterally challenge his sentence. The waiver was therefore
knowing and voluntary.
Sabater alleges that to enforce the waiver in the face of the vacated New Jersey
conviction would constitute manifest injustice. 2 [Blue 14.] Manifest injustice is rarely
established and is defined by:
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
Cir. 2007); Lambert v. Blackwell, 134 F.3d 506, 520–21 (3d Cir. 1997); Sabater I, 270 F. App’x at 220–21. 2 Sabater argues that the Supreme Court’s decision in Johnson v. United States, 544 U.S. 295, 298 (2005) should be interpreted to mean that successful collateral attacks on state convictions relied upon to enhance sentences require district courts to grant motions under § 2255 regardless of whether a waiver was signed.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______
No. 10-3323 ______
UNITED STATES OF AMERICA
v.
TONEY SABATER, Appellant ______
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-05-cr-00433-001) District Judge: Honorable Christopher C. Conner ______
Argued June 21, 2011 ______
Before: HARDIMAN, ALDISERT, Circuit Judges, and RESTANI, * Judge
(Filed: August 1, 2011) ______
James J. West, Esq. (Argued) James J. West 105 North Front Street Suite 205 Harrisburg, PA 17101
Counsel for Appellant
* Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation. Peter J. Smith, Esq. Christy H. Fawcett, Esq. (Argued) Theodore B. Smith, III, Esq. Office of United States Attorney 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108
Counsel for Appellee _______
OPINION _______
RESTANI, Judge.
Defendant Toney Sabater appeals the district court’s decision denying his 28
U.S.C. § 2255 motion to vacate his sentence. [Blue 10; United States v. Sabater, No.
1:05-cr-00433-001, 2010 U.S. Dist LEXIS 73226, at *2 (M.D. Pa. July 21, 2010).]
Sabater alleges that he did not knowingly and voluntarily acquiesce to the appellate
waiver in his plea agreement and that to enforce the waiver would constitute manifest
injustice. [Blue 14, 18.] For the following reasons, we will affirm the district court’s
judgment.
Because we write for the parties, we recount only the essential facts and
procedural history. In November 2005, Sabater was charged with conspiracy to distribute
and possess with intent to distribute—as well as distribution and possession with intent to
distribute—500 grams or more of cocaine hydrochloride. [Presentence Investigation
Report (“PSR”) ¶ 1.] In June 2006, Sabater signed a plea agreement whereby the
2 Government dismissed the original charges and Sabater pled guilty to two superceding
counts of interstate travel to facilitate drug trafficking with a maximum sentence of ten
years. [Plea Agreement, United States v. Sabater, D.C. 1-05-cr-00433-001, Docket No.
30, ¶¶ 1–2 (M.D. Pa.).] In exchange, Sabater waived his right to direct appeal or to
collateral challenge of his conviction and sentence under 28 U.S.C. § 2255. [Id. ¶ 13;
Blue 4.] At sentencing, in November 2006, the district court found Sabater’s criminal
history status to be VI rather than V based in part on a 1994 New Jersey conviction,
yielding a sentencing guideline range of 92 to 115 months. [Blue 4; Sabater, 2010 U.S.
Dist. LEXIS 73226, at *10–11; see U.S. Sentencing Guidelines Manual Sentencing
Table, available at
http://www.ussc.gov/Guidelines/2010_guidelines/Manual_PDF/Chapter_5.pdf.] Sabater
was sentenced to 115 months imprisonment and Sabater appealed under 18 U.S.C. §
3742. See United States v. Sabater, 270 F. App’x 219, 220 (3d Cir. 2008) (not
precedential) (“Sabater I”). In March 2008, we held that the waiver was knowing and
voluntary and that no manifest injustice was demonstrated by the facts before the court.
Id. at 220–21.
In June 2008, the Superior Court of New Jersey vacated and dismissed the 1994
New Jersey conviction with prejudice. [App. at 66a–67a.] In July 2009, Sabater moved
to vacate, set aside, or correct his sentence on the basis that he was prejudiced by
ineffective assistance of counsel and that, despite the waiver, the vacatur of the New
3 Jersey conviction should result in lowering his criminal history category from VI to V,
and therefore he should be resentenced based on a guideline range of 84 to 105 months.
[Blue 4, 10, 14; Red 4; Sabater, 2010 U.S. Dist LEXIS 73226, at *2.] The district court
held that Sabater’s actions were knowing and voluntary and noted that Sabater’s sentence
could take into account the vacated New Jersey conviction without creating manifest
injustice. [Sabater, 2010 U.S. Dist LEXIS 73226, at *5–6, 14–15.] Sabater now claims
that the waiver was not knowing and voluntary and to enforce it would constitute
manifest injustice.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and § 2255 to review the final
judgment of a U.S. District Court. United States v. Mabry, 536 F.3d 231, 236 (3d Cir.
2008). We review the legality of waivers of appeal de novo. United States v. Khattak,
273 F.3d 557, 560 (3d Cir. 2001).
A defendant may waive the right to direct and collateral attack, provided the
waivers are “entered into knowingly and voluntarily, and their enforcement does not
work a miscarriage of justice.” 1 Mabry, 536 F.3d at 237. “Knowing and voluntary”
indicates that “the defendant actually does understand the significance and consequences”
of the waiver and that “the decision is uncoerced.” Fahy v. Horn, 516 F.3d 169, 185 (3d
Cir. 2008) (quoting Godinez v. Moran, 509 U.S. 389, 401 n. 12 (1993)) (internal
1 Under our precedents, “manifest injustice” and “miscarriage of justice” have been used interchangeably. See United States v. Gwinnett, 483 F.3d 200, 205–06 (3d 4 quotation marks omitted). We have already held that Sabater knowingly and voluntarily
waived his right to appeal. Sabater I, 270 F. App’x at 221. Sabater signed the plea
agreement and was specifically questioned about the agreement in court, where Sabater
repeatedly responded in the affirmative, dispelling any concerns as to the legal terms used
in the agreement. Id. at 220–21. A review of the plea agreement and Sabater’s responses
in court reveals no significant difference between his waiver of appeal rights and his
waiver of the right to collaterally challenge his sentence. The waiver was therefore
knowing and voluntary.
Sabater alleges that to enforce the waiver in the face of the vacated New Jersey
conviction would constitute manifest injustice. 2 [Blue 14.] Manifest injustice is rarely
established and is defined by:
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
Cir. 2007); Lambert v. Blackwell, 134 F.3d 506, 520–21 (3d Cir. 1997); Sabater I, 270 F. App’x at 220–21. 2 Sabater argues that the Supreme Court’s decision in Johnson v. United States, 544 U.S. 295, 298 (2005) should be interpreted to mean that successful collateral attacks on state convictions relied upon to enhance sentences require district courts to grant motions under § 2255 regardless of whether a waiver was signed. [See Blue 13–15.] In order to decide a statute of limitations issue, the Supreme Court stated that its precedents assumed that a defendant may collaterally challenge a federal sentence enhanced based on a later vacated state court conviction. Johnson, 544 U.S. at 302–03. Whether or not Johnson provides guidance as to a guideline criminal history category based on a state conviction vacated in this type of circumstance, Johnson did not address resentencing where the defendant has waived all rights of appeal or collateral attack in a plea agreement. 5 the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result.
Khattak, 273 F.3d at 563 (quoting United States v. Teeter, 257 F.3d 14, 25–26 (1st Cir.
2001)) (alteration in original).
No manifest injustice exists on the facts before us. 3 Sabater knowingly and
voluntarily waived his appellate rights in exchange for a plea agreement that was not one-
sided, and therefore not manifestly unjust to Sabater on such a basis. 4 The agreement
waived the two original charges—conspiracy to distribute and possess with intent to
distribute, and distribution and possession with intent to distribute 500 grams or more of
cocaine hydrochloride, carrying a forty year maximum and a ten year minimum—and
3 Sabater I commented that, had Sabater been able to show egregious facts to constitute manifest injustice, the waiver would have been invalid. See Sabater I, 270 F. App’x at 221. Even taking into account the cautions of Sabater I, Sabater has not alleged new facts that could constitute the manifest injustice necessary to his claim. We do not decide what those facts might be but observe Sabater has not alleged he was actually innocent of the New Jersey crime. 4 Sabater argues that his Sixth Amendment rights were violated due to ineffective assistance of counsel. [Blue 19–21.] Sabater contends that his counsel did not inform him or was not aware of the appellate waiver in the plea agreement and, therefore, manifest injustice occurred. [Blue 19–21.] Under Strickland v. Washington, 466 U.S. 668, 689 (1984), the defendant must prove both that counsel did not provide “reasonable professional assistance” and that “[the defendant] was actually prejudiced by counsel’s deficient performance.” Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (internal quotation marks omitted) (citing Strickland, 466 U.S. at 687–88). To the extent this claim was not disposed of by our previous ruling, Sabater has not demonstrated ineffective assistance of counsel because there is no indication that he ought to have rejected the plea agreement and that the attorneys’ advice to accept the agreement was not reasonable, or that he was prejudiced.
6 instead allowed Sabater to plead to two counts of a lesser offense with a maximum of ten
years. 5 See 21 U.S.C. § 841(b)(1)(B). [;PSR ¶ 54; Red 22; Plea Agreement, United
States v. Sabater, D.C. 1-05-cr-00433-001, Docket No. 30, ¶ 1 (M.D. Pa.).] Although
Sabater’s bargaining power may have been greater absent the New Jersey conviction,
such a circumstance is not sufficient to meet the stringent manifest injustice standard.
Further, the record indicates that the possibility of vacation of the New Jersey sentence
based on claims of racial profiling at the time the crime was committed in New Jersey
was known at the time of the plea. [App. at 56a.] No exception to the waiver for such a
claim was included in the agreement. Finally, the ultimate sentence received is similar to
the guideline sentence for which Sabater would have been eligible had the New Jersey
conviction been vacated prior to federal sentencing. 6 In sum, there are no facts here that
support a conclusion that enforcement of the waiver created a manifest injustice.
Accordingly, we will affirm the district court’s judgment.
5 Although the Government and the presentence investigation report maintain that Sabater would have faced a mandatory minimum of ten years under the original indictment, Sabater might have faced a mandatory minimum of twenty years because Sabater committed the offense in the instant case “after a prior conviction for a felony drug offense ha[d] become final.” 21 U.S.C. § 841(b)(1)(B). [;PSR ¶ 32.] Sabater also may have faced a maximum sentence of life in prison under the same provision. Id. The Government did not file the necessary documents to request this enhanced sentence. 6 The district court may arrive at a particular sentence for a variety of reasons and the plea agreement did not bind the court in sentencing. For example, because the conviction was vacated based on a general policy decision rather than some factor relating to Sabater’s innocence, it is possible the district court might have found that criminal history level V was understated. 7