OPINION
RODRIGUEZ, Senior District Judge.
Michael M. Walker, Jr. appeals from the sentence imposed after he pled guilty to conspiracy to possess with intent to distribute fifty grams or more of cocaine in violation of 21 U.S.C. § 846. Walker argues that in sentencing him to 120 months’ incarceration followed by 60 months of supervised release, the District Court erred in failing to reduce his criminal history points under the Sentencing Guidelines to enable him to come within the purview of the statutory safety valve, thereby avoiding a mandatory minimum sentence. Walker also contends that his sentence was unreasonable because the District Court refused to apply the minor participant base offense level reduction provided by the Sentencing Guidelines.
Because we conclude that Walker validly waived the right to appeal his sentence, we will affirm.
I.
As we write solely for the parties, we recite only those facts necessary to our decision. In the spring of 2006, with the aid of a confidential informant, members of Erie Area Gang Law Enforcement (EAGLE) FBI Task Force captured multiple controlled buys of crack cocaine on both audio and video recording devices. The evidence gathered demonstrated that Walker and others were involved in a drug conspiracy and that Walker, on three separate occasions, was involved in a controlled buy of over five grams of crack cocaine and aided and abetted the transport of 120 grams of crack cocaine to Erie, Pennsylvania.
On October 10, 2006, a federal indictment was unsealed, charging Walker and several co-conspirators with conspiracy to possess with intent to distribute and distribution of fifty grams or more of cocaine base in violation of 21 U.S.C. § 846 (Count One). Walker was also charged with possession with intent to distribute and distribution of five grams or more (Counts Two, Three, and Six) and fifty grams or more
(Count Seven) of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(iii), and 841(b)(l)(A)(iii). On August 22, 2007, Walker pleaded guilty to Count One of the Indictment and accepted responsibility for the remaining counts, which were dismissed.
In his plea agreement, Walker waived his right to take a direct appeal from his conviction or sentence,
subject to certain exceptions: if the Government appealed from the sentence, or “[i]f (1) the sentence exceed[ed] the applicable statutory limits set forth in the United States Sentencing Code, or (2) the sentence unreasonably exceed[ed] the guideline range determined by the Court under the Sentencing Guidelines,” Walker could take a direct appeal. (A12.)
Under the 2007 Sentencing Guidelines, Walker’s base offense level was 30. He was credited with two points for acceptance of responsibility and one point for timely notification of his intent to enter a guilty plea, for a Total Offense Level of 27.
Walker previously had been convicted of three separate offenses involving the possession of marijuana or disorderly conduct. As a result of these incidents, he received a total of four criminal history points under Guidelines §§ 4Al.l(b) and (c),
and his Presentence Investigation Report set his Criminal History Category at III. Thus, Walker’s starting Guideline Range for imprisonment was calculated to be 87 to 108 months, to be followed by a term of supervised release of three to five years. Because the statutory mandatory minimum was ten years under 21 U.S.C. § 841(b)(l)(A)(iii), the sentencing court found that “the guidelines sentence [was] one hundred twenty months.” (A81.) In December of 2007, Walker was sentenced to the ten-year mandatory minimum term of imprisonment to be followed by a five-year term of supervised release.
II.
This Court will decline to exercise jurisdiction to review the merits of a defendant’s appeal where a defendant knowingly and voluntarily waives the right to appeal, unless the result will work a miscarriage of justice.
United States v. Gwinnett,
483 F.3d 200, 203 (3d Cir.2007). Of course, “a sentence based on constitutionally impermissible criteria, such as race, or a sentence in excess of the statutory maximum sentence for the defendant’s crime, can be challenged on appeal even if the defendant
executed a blanket waiver of his appeal rights.”
Id.
(citation omitted).
In the instant case, Walker acknowledged during the plea colloquy that he waived his right to take a direct appeal. (A46-48.) It is apparent from the record that the waiver was knowing and voluntary. (A48-56.) None of the waiver exceptions is present in this case: the Government has not appealed, the sentence imposed does not exceed the statutory maximum, and the mandatory minimum sentence imposed did not unreasonably exceed the guideline range determined by the court. Although Walker’s initial guideline range was 87 to 108 months, “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5Gl.l(b).
Further, at sentencing, in accordance with
United States v. Gunter,
527 F.3d 282, 285 (3d Cir.2008), the District Court correctly calculated Walker’s starting Guidelines range; formally ruled on Walker’s motions regarding the Presentence Investigation Report, noting on the record any effect the rulings had on the Guidelines calculations; and exercised appropriate discretion by considering the relevant § 3553(a) factors.
Even if we were to invalidate the waiver in this case, we would reject Walker’s argument that the sentencing court should have exercised discretion in interpreting the safety valve provision, 18 U.S.C. § 3553(f). In
United States v. McKoy,
452 F.3d 234, 240 (3d Cir.),
cert. denied
549 U.S. 982, 127 S.Ct. 449, 166 L.Ed.2d 319 (2006), we found that
Booker
did not render eligibility requirements for safety-valve sentencing relief advisory. Rather, applicability of the safety valve continues to depend on a defendant’s criminal history without consideration of the underlying circumstances of prior sentences. Similarly, although U.S.S.G.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
RODRIGUEZ, Senior District Judge.
Michael M. Walker, Jr. appeals from the sentence imposed after he pled guilty to conspiracy to possess with intent to distribute fifty grams or more of cocaine in violation of 21 U.S.C. § 846. Walker argues that in sentencing him to 120 months’ incarceration followed by 60 months of supervised release, the District Court erred in failing to reduce his criminal history points under the Sentencing Guidelines to enable him to come within the purview of the statutory safety valve, thereby avoiding a mandatory minimum sentence. Walker also contends that his sentence was unreasonable because the District Court refused to apply the minor participant base offense level reduction provided by the Sentencing Guidelines.
Because we conclude that Walker validly waived the right to appeal his sentence, we will affirm.
I.
As we write solely for the parties, we recite only those facts necessary to our decision. In the spring of 2006, with the aid of a confidential informant, members of Erie Area Gang Law Enforcement (EAGLE) FBI Task Force captured multiple controlled buys of crack cocaine on both audio and video recording devices. The evidence gathered demonstrated that Walker and others were involved in a drug conspiracy and that Walker, on three separate occasions, was involved in a controlled buy of over five grams of crack cocaine and aided and abetted the transport of 120 grams of crack cocaine to Erie, Pennsylvania.
On October 10, 2006, a federal indictment was unsealed, charging Walker and several co-conspirators with conspiracy to possess with intent to distribute and distribution of fifty grams or more of cocaine base in violation of 21 U.S.C. § 846 (Count One). Walker was also charged with possession with intent to distribute and distribution of five grams or more (Counts Two, Three, and Six) and fifty grams or more
(Count Seven) of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(iii), and 841(b)(l)(A)(iii). On August 22, 2007, Walker pleaded guilty to Count One of the Indictment and accepted responsibility for the remaining counts, which were dismissed.
In his plea agreement, Walker waived his right to take a direct appeal from his conviction or sentence,
subject to certain exceptions: if the Government appealed from the sentence, or “[i]f (1) the sentence exceed[ed] the applicable statutory limits set forth in the United States Sentencing Code, or (2) the sentence unreasonably exceed[ed] the guideline range determined by the Court under the Sentencing Guidelines,” Walker could take a direct appeal. (A12.)
Under the 2007 Sentencing Guidelines, Walker’s base offense level was 30. He was credited with two points for acceptance of responsibility and one point for timely notification of his intent to enter a guilty plea, for a Total Offense Level of 27.
Walker previously had been convicted of three separate offenses involving the possession of marijuana or disorderly conduct. As a result of these incidents, he received a total of four criminal history points under Guidelines §§ 4Al.l(b) and (c),
and his Presentence Investigation Report set his Criminal History Category at III. Thus, Walker’s starting Guideline Range for imprisonment was calculated to be 87 to 108 months, to be followed by a term of supervised release of three to five years. Because the statutory mandatory minimum was ten years under 21 U.S.C. § 841(b)(l)(A)(iii), the sentencing court found that “the guidelines sentence [was] one hundred twenty months.” (A81.) In December of 2007, Walker was sentenced to the ten-year mandatory minimum term of imprisonment to be followed by a five-year term of supervised release.
II.
This Court will decline to exercise jurisdiction to review the merits of a defendant’s appeal where a defendant knowingly and voluntarily waives the right to appeal, unless the result will work a miscarriage of justice.
United States v. Gwinnett,
483 F.3d 200, 203 (3d Cir.2007). Of course, “a sentence based on constitutionally impermissible criteria, such as race, or a sentence in excess of the statutory maximum sentence for the defendant’s crime, can be challenged on appeal even if the defendant
executed a blanket waiver of his appeal rights.”
Id.
(citation omitted).
In the instant case, Walker acknowledged during the plea colloquy that he waived his right to take a direct appeal. (A46-48.) It is apparent from the record that the waiver was knowing and voluntary. (A48-56.) None of the waiver exceptions is present in this case: the Government has not appealed, the sentence imposed does not exceed the statutory maximum, and the mandatory minimum sentence imposed did not unreasonably exceed the guideline range determined by the court. Although Walker’s initial guideline range was 87 to 108 months, “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” U.S.S.G. § 5Gl.l(b).
Further, at sentencing, in accordance with
United States v. Gunter,
527 F.3d 282, 285 (3d Cir.2008), the District Court correctly calculated Walker’s starting Guidelines range; formally ruled on Walker’s motions regarding the Presentence Investigation Report, noting on the record any effect the rulings had on the Guidelines calculations; and exercised appropriate discretion by considering the relevant § 3553(a) factors.
Even if we were to invalidate the waiver in this case, we would reject Walker’s argument that the sentencing court should have exercised discretion in interpreting the safety valve provision, 18 U.S.C. § 3553(f). In
United States v. McKoy,
452 F.3d 234, 240 (3d Cir.),
cert. denied
549 U.S. 982, 127 S.Ct. 449, 166 L.Ed.2d 319 (2006), we found that
Booker
did not render eligibility requirements for safety-valve sentencing relief advisory. Rather, applicability of the safety valve continues to depend on a defendant’s criminal history without consideration of the underlying circumstances of prior sentences. Similarly, although U.S.S.G. § 4A1.3(b) permits a district court to reduce a defendant’s criminal history category for overstatement of criminal history, the provision cannot be used to satisfy the safety valve’s criminal history point requirement for one who otherwise exceeds it.
Moreover, in imposing the mandatory minimum sentence, the sentencing court made a finding that Walker’s criminal history was not overstated by application of more than one criminal history point, as “[h]e had eight adjudications as a juvenile, and ... five convictions in the presentence report, plus the one that’s been before the court today. So, I can’t ... agree that the safety valve should not apply in this case.” (A79.) Finally, the District Court did not
err in denying Walker’s request to apply the minor participant base level reduction provided for under U.S.S.G. § 3B1.2(b). In declining to apply a minor role adjustment, instead imposing the mandatory minimum, the sentencing court pointed out that Walker had stipulated to 135 grams of cocaine base, (A65), and accepted the Government’s argument that he was one of the most active participants in supplying crack cocaine to the confidential informant, (A69).
In conclusion, we find that the issues Walker pursues here fall squarely within the scope of his appellate waiver, he knowingly and voluntarily agreed to the waiver, and enforcing the appellate waiver will not work a miscarriage of justice.
See United States v. Goodson,
544 F.3d 529, 536 (3d Cir.2008) (articulating three elements to be considered when government invokes appellate waiver and defendant argues it does not bar appeal). Accordingly, we decline to exercise our jurisdiction to review the merits of his appeal.
See, e.g., United States v. Corso,
549 F.3d 921 (3d Cir.2008) (finding defendant’s appellate waiver precluded appeal challenging the district court’s calculation of the Guideline range).
III.
For these reasons, we affirm.