USA v. Raheem Creque

Filing

NOT PRECEDENTIAL OPINION Coram: CHAGARES, JORDAN and HARDIMAN, Circuit Judges. Total Pages: 7. Judge: HARDIMAN Authoring. [-Document edited from "On appeal from the District Court for the District of the Virgin Islands" to "On Appeal from the District Court of the Virgin Islands". Notice is being resent.]--[Edited 12/20/2016 by CJG]

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Document: 003112492644

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Date Filed: 12/20/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-1155
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UNITED STATES OF AMERICA
v.
RAHEEM T. CREQUE,
Appellant
____________
On Appeal from the District Court
of the Virgin Islands
(D.V.I. No. 3-14-cr-00034-001)
District Judge: Honorable Curtis V. Gomez
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 16, 2016
Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.
(Filed: December 20, 2016)
____________
OPINION*
____________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

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HARDIMAN, Circuit Judge.
Raheem Creque appeals his judgment of sentence following a plea of guilty.
Because that plea included a valid appellate waiver, we will dismiss Creque’s appeal.
I
Creque was arrested on January 21, 2014 for, inter alia, production of child
pornography. Two days later he escaped and was on the lam for over a month, until he
was captured on February 28, 2014. On June 12, 2014, a federal grand jury indicted
Creque on 38 counts.
On July 9, 2014, Creque pleaded guilty to three counts of production of child
pornography in violation of 18 U.S.C. § 2251(a) (Counts 1, 7, and 8) and one count of
escape from custody in violation of 18 U.S.C. § 751(a) (Count 32). Creque acknowledged
that he reviewed the written plea agreement, was satisfied with his legal representation,
and understood that his crimes carried a maximum sentence of 360 months’
imprisonment and supervised relief for life. He further acknowledged that he waived both
his right to appeal any sentence within the statutory maximum and to bring any habeas
petition, except for ineffective assistance of counsel.
Creque was sentenced on January 8, 2015. The Presentence Investigation Report
recommended a two-level enhancement for obstruction of justice under United States
Sentencing Guidelines (USSG) § 3C1.1, and the District Court accepted this
recommendation over Creque’s objection. Based on an offense level of 38 and criminal
history category of I, Creque’s advisory Guidelines range was 235 to 293 months’
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imprisonment. The District Court then considered the factors under 18 U.S.C. § 3553(a)
and sentenced Creque to 300 months’ imprisonment on the three child pornography
counts and a concurrent term of 60 months’ imprisonment on the escape charge. The
Court also imposed a lifetime term of supervised release.
II1
Before addressing Creque’s substantive claims, we must first consider the
Government’s argument that Creque waived his right to appeal. We review that issue de
novo. United States v. Williams, 510 F.3d 416, 421–22 (3d Cir. 2007).
The appellate waiver in Creque’s plea agreement states:
The defendant is aware that Title 18, United States Code, Section 3742 affords a
defendant the right to appeal the sentence imposed. Acknowledging all this, the
defendant knowingly waives the right to appeal any sentence within the maximum
provided in the statute(s) of conviction or the manner in which that sentence was
determined, on the grounds set forth in [18 U.S.C.] Section 3742(a) or on any
ground whatever, in exchange for the concessions made by the United States in
this plea agreement. In addition, the defendant expressly waives the right to
petition under 28 U.S.C. Section 2255, with the exception of a claim of ineffective
assistance of counsel. The defendant has discussed these rights with the
defendant’s attorney. The defendant understands the rights being waived, and the
defendant waives these rights knowingly, intelligently, and voluntarily. This
agreement does not affect the rights or obligations of the United States as set forth
in [18 U.S.C.] Section 3742(b).
Supp. App. 27.
Despite this clear waiver of any right of direct appeal, Creque claims that his
waiver is not enforceable because he brings a meritorious appeal. But we have repeatedly

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
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held that waivers of appeal may be enforceable even if claims of error at the district court
are clearly “meritorious.” United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001)
(quoting United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999)); see also id.
(quoting United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995)) (“To say that a
waiver of appeal is effective if and only if the defendant lacks grounds . . . is to say that
waivers will not be honored.” (alteration in original)). Creque’s unenforceability
argument is a nonstarter.
We will enforce an appellate waiver if: (1) it is entered knowingly and voluntarily;
(2) no exception in the plea agreement prevents enforcement of the waiver; and
(3) “enforcing the waiver would [not] work a miscarriage of justice.” United States v.
Goodson, 544 F.3d 529, 536 (3d Cir. 2008) (citations omitted). Because all three factors
are present here, we will enforce Creque’s waiver.
First, Creque does not argue that he agreed to the waiver involuntarily or
unknowingly. For a waiver of appeal to be “knowing and voluntary,” the sentencing
judge “must address the defendant personally in open court and inform the defendant of,
and determine that the defendant understands . . . the terms of [the] plea-agreement
[provision] waiving the right to appeal or to collaterally attack the sentence.” Khattak,
273 F.3d at 563 (quoting Fed. R. Crim. P. 11(b)(1) & (b)(1)(N)). Here, the District Court
complied with the rule by stating:
Ordinarily when a defendant is sentenced in court, you have a right to
appeal the sentence imposed by the Court.
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According to your plea agreement you have agreed to waive, that is, give
up, your right to appeal any sentence within the maximum provided in the statutes
of conviction. You have also agreed to waive, that is, give up, your right to
petition under 28 U.S. Code, Section 2255, with the exception of a claim of
ineffective assistance of counsel.
Do you understand that if your plea is accepted, you will have waived or
given up your right to appeal as I outlined?
Supp. App. 7. Creque answered: “Yes, Your Honor.” Id. The Court ensured that Creque
was competent, that he made an informed decision, and that his demeanor indicated his
voluntariness.
Second, no exception to the appellate waiver applies. Creque’s plea agreement
permits a direct appeal from his sentence only if it exceeds the statutory maximum for his
crimes. The District Court made sure that Creque understood his maximum statutory
sentence was “30 years imprisonment.” Supp. App. 5–6. Because Creque was sentenced
to 25 years’ imprisonment (300 months), he doesn’t qualify for this exception.
The plea agreement’s habeas carve-out is also inapplicable. As Creque points out,
he has the right under his plea to file a habeas petition based on ineffective assistance of
counsel. But this is a direct appeal, not a habeas petition.
Third, enforcing the appellate waiver would not result in a miscarriage of justice.
It is only the “unusual circumstance where an error amount[s] to a miscarriage of
justice.” Khattak, 273 F.3d at 562. Rather than “earmark specific situations,” we have
pointed to certain factors to determine if a sentencing error vitiates the waiver of appeal.
See id. at 563. Those factors include the “clarity of the error, its gravity, its character . . . ,
the impact of the error on the defendant, the impact of correcting the error on the
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government, and the extent to which the defendant acquiesced in the result.” Id. (quoting
United States v. Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001)).
Creque claims a miscarriage of justice will result from enforcing his waiver
because it is “apparent on the face of the record” that he received ineffective assistance of
counsel at sentencing. Reply Br. 2. According to Creque, this ineffective assistance led to
a longer sentence than warranted due to his two-level enhancement for obstruction of
justice and his above-Guidelines sentence. But it is less than clear that these are errors at
all. First, escape from custody is obstruction of justice under USSG § 3C1.1, see
comment 4(E); and second, the District Court complied with 18 U.S.C. § 3553(a) in
deviating slightly upward from the Guidelines range, while remaining well below the
statutory maximum sentence.
Nor does the “face of the record” show that Creque received ineffective assistance
of counsel. His lawyer specifically objected to the obstruction of justice “error” of which
he complains. And counsel was not required to object to the District Court’s thorough
analysis of the § 3533(a) factors. Creque specifically agreed that he “had a chance to
review the documents in this case with [his] attorney” and that he was “satisfied with the
representation [he] received from [his] attorney in this case.” Supp. App. 4. Indeed,
Creque does not even allege that his plea agreement was the product of inadequate
assistance of counsel. And in the agreement, he consented to any sentence under 360
months, so Creque “acquiesced in the result,” Khattak, 273 F.3d at 563 (quoting Teeter,

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257 F.3d at 26). Accordingly, his sentence does not constitute “manifest injustice,”
United States v. Gwinnett, 483 F.3d 200, 206 (3d Cir. 2007).
We conclude by noting that Creque’s appellate waiver was not purchased cheaply.
For its part, the Government agreed to dismiss 34 of 38 counts against Creque, including
several counts of second degree rape. For that reason, allowing Creque to avoid his
appellate waiver “would prolong litigation, affording [him] the benefits of [his]
agreement[] while shielding [him] from [his] self-imposed burdens.” Khattak, 273 F.3d at
561. We decline to do so and will affirm Creque’s judgment of sentence.

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