                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                      No. 07-2474
                     ____________

           UNITED STATES OF AMERICA,

                           v.

               EDWARD HOWARD, JR.,
                   a/k/a Bucky

                EDWARD HOWARD JR.,
                               Appellant
                   ____________

APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
           (D.C. Crim. No. 3-05-cr-00290-10)
      District Judge: Honorable James M. Munley
                     ____________

        Submitted Under Third Circuit LAR 34.1(a)
                   November 19, 2010
                     ____________

Before: BARRY, CHAGARES and VANASKIE, Circuit Judges

           (Opinion Filed: November 30, 2010)
                     ____________

                       OPINION
                     ____________
BARRY, Circuit Judge

       Edward Howard, Jr., pled guilty to a controlled substance offense and was

sentenced to ninety-five months in prison, explicitly waiving his right to appeal his

conviction and sentence. He now asks us to remand to the District Court for

resentencing, arguing that his sentence was unreasonable. Because he has not

demonstrated that his waiver of appeal was invalid or that to enforce the waiver would

result in a miscarriage of justice, we will affirm the judgment of sentence.

                                             I.

       Because we write only for the parties, we discuss only the facts relevant to our

analysis.

       In November of 2005, Howard and twenty one others were indicted in connection

with a methamphetamine operation that authorities began investigating in 1999. Pursuant

to a negotiated agreement, Howard pled guilty to the attempted manufacture, distribution,

and possession with intent to manufacture and distribute methamphetamine.

       Howard’s plea agreement stipulated, inter alia, that he “waive[d] the right to

appeal any conviction and sentence, including a sentence imposed within the statutory

maximum, on any and all grounds set forth in Title 18, United States Code, Section 3742

or any other grounds, constitutional or non-constitutional, including the manner in which

that sentence was determined in light of United States v. Booker, 125 S. Ct. 738 (2005).”

App. at 41. The plea agreement further stated that “[p]ursuant to Rule 11 . . . defendant’s


                                             2
plea is knowing and voluntary, and is not the result of force or threats or promises apart

from the promises set forth in this written plea agreement.” App. at 42.

       At the subsequent plea colloquy, the government recited the terms of the plea

agreement, including the waiver of Howard’s right to appeal his conviction and sentence.

When asked by both the government and the District Court whether he understood those

terms and voluntarily agreed to them, Howard replied affirmatively. The Court also

directed the government to voir dire Howard concerning his signed Statement of

Defendant, and when subsequently asked whether it was his “intention to knowingly and

intentionally waive [his] right to appeal[,]” Howard again replied affirmatively. Change

of Plea Transcript at 25. Specifically, Howard’s Statement averred “that as part of the

plea agreement, I am waiving my right to appeal and/or challenge my conviction and

sentence, and the manner in which it was imposed.” App. at 46.

       Howard faced a statutory maximum prison sentence of twenty years. See 21

U.S.C. § 841(b)(1)(C). Because, however, he had provided substantial assistance to

authorities, the District Court granted the government’s motion for a three-level

downward departure in his offense level, yielding a Guidelines range of 87 to 108

months. Howard urged the Court to impose a sentence of “no greater than five years” –

i.e., sixty months – in light of the nature of his criminal history, and his personal history

of substance abuse, lack of education, and underemployment. App. at 75-77. The Court

considered Howard’s argument, the government’s counter-argument for a within-


                                              3
Guidelines sentence, and the factors enumerated in 18 U.S.C. § 3553(a), and sentenced

Howard to ninety-five months in prison.

                                            II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Howard argues that his sentence is unreasonable. Where, however, as here, the

existence of an appellate waiver implicates the antecedent question of our jurisdiction to

review the District Court’s judgment of sentence, we first review the validity of the

waiver, and our review is de novo. See United States v. Khattak, 273 F.3d 557, 560, 562

(3d Cir. 2001).

       In United States v. Jackson, we rejected an appeal challenging the reasonableness

of a sentence, at the high end of the Guidelines range, imposed on a defendant who pled

guilty pursuant to a plea agreement that included an appellate waiver. See United States

v. Jackson, 523 F.3d 234, 244 (3d Cir. 2008). In the course of doing so, we summarized

the rule that we had laid down in Khattak, and clarified in United States v. Gwinnett, 483

F.3d 200, 203 (3d Cir. 2007):

       Waivers of appellate rights, if entered into knowingly and voluntarily, are
       valid. A defendant’s valid appellate waiver does not deprive this Court of
       jurisdiction over the defendant’s claims, and we retain subject matter
       jurisdiction over the defendant’s appeal despite the waiver. As we noted in
       Gwinnett, we will decline to exercise our jurisdiction to review the merits
       of an appeal where the defendant knowingly and voluntarily waived the
       right to appeal. Of course, we will review the merits of an appeal if the
       waiver expressly provides specific exceptions under which an appeal may
       be taken, provided the appeal implicates one of those exceptions.
                                             4
        Furthermore, we have recognized that there may be an unusual
        circumstance where an error amounting to a miscarriage of justice may
        invalidate the waiver, and in such cases we will exercise our jurisdiction
        over a waived appeal.

Jackson, 523 F.3d at 242 (internal alterations, quotation marks, and citations omitted). 1

        Howard concedes that he “waived his right to appeal,” and that his “waiver of

appeal, if valid, would prevent review of what [he] believes is an unreasonable sentence.”

Appellant’s Br. at 7, 8. The record demonstrates that his waiver of appeal was valid;

indeed, the District Court conducted a thorough plea colloquy to ensure that Howard’s

guilty plea was knowing and voluntary, as was his assent to the provisions of his plea

agreement, including its waiver of the right to appeal. Accordingly, Howard has not met

Khattak’s threshold requirement of proving that his waiver was unknowing or

involuntary. See Khattak, 273 F.3d at 562; Jackson, 523 F.3d at 243-44 (waiver valid

where record reveals a “thorough and proper” plea colloquy by the district court, and the

defendant’s awareness, “by her own admission,” of the appellate waiver).


   1
       In Jackson we proceeded to note:

        While this Court has not articulated a precise definition of the phrase “miscarriage
        of justice,” we have set forth several factors to consider when determining whether
        to enforce an otherwise proper appellate waiver. See Khattak, 273 F.3d at 563
        (noting that this Court chose “not to earmark specific situations” in which to
        relieve the defendant of a waiver). These factors include “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 the defendant, the
        impact of correcting the error on the government, and the extent to which the
        defendant acquiesced in the result.” See id. (quoting United States v. Teeter, 257
        F.3d 14, 25-26 (1st Cir.2001)).

Jackson, 523 F.3d at 242-43.                  5
       Relying on the second prong of Khattak, Howard “requests that [his appellate]

waiver not be enforced in order to prevent a miscarriage of justice.” Appellant’s Br. at 8.

He then reprises the argument he presented to the District Court that his “sentence should

take into account his history of addiction, his lack of education and his unsteady

employment history.” Id. at 9. 2 In so doing, however, he offers no evidence of “unusual

circumstance[s] where a[ sentencing court’s] error amount[s] to a miscarriage of justice”

that merits setting aside an otherwise-valid waiver of appeal. See Khattak, 273 F.3d at

562. Indeed, he has alleged no error at all. Rather, in “contend[ing] that a sentence

below the advisory guideline range is necessary to reflect the nature and circumstances of

the crime and the history and characteristic [sic] of the Appellant[,]” Appellant’s Br. at

11-12 (emphasis added), Howard misreads the law governing sentencing, and ignores the

record’s ample evidence of the Court’s careful consideration of his arguments and all of

the sentencing factors that the law required it to weigh.

       A ninety-five month prison sentence undoubtedly is strong, but the record does not

suggest a miscarriage of justice that would permit us to invalidate Howard’s waiver and



   2
     Presumably as evidence of his sentence’s unreasonableness—i.e., in the sense that it
was disproportionate to his offense—Howard also argues to us that he did not profit from
the sale or distribution of methamphetamine, and that his underemployment “evidence[d]
his need to manufacture methamphetamines for his own personal use.” Appellant’s Br. at
10. Aside from being unpersuasive in its own right, Howard did not make this argument
before the District Court. Moreover, the record includes voluminous evidence that
Howard was involved in a large-scale methamphetamine operation, a fact that the Court
noted contemporaneous with its consideration of Howard’s arguments and of Section
3553(a)’s sentencing factors.
                                            6
thereby consider the merits of his appeal of his sentence. 3 We will affirm the judgment

of sentence.




   3
       As we observed in Jackson:

         [I]t will be a rare and unusual situation when claims of an unreasonable sentence,
         standing alone, will be sufficient to invalidate a waiver because of a miscarriage of
         justice. This case obviously does not present the “unusual circumstances” we
         contemplated in Khattak. Accordingly, we decline to exercise our jurisdiction
         over [the instant] appeal, as [appellant] has waived the ability to challenge [his]
         sentence of imprisonment[.]

See Jackson, 523 F.3d at 244.                  7
