USA v. Joseph Brant

Filing

NOT PRECEDENTIAL OPINION Coram: GREENAWAY JR., SHWARTZ and GREENBERG, Circuit Judges. Total Pages: 3. Judge: GREENBERG Authoring.

Case: 16-2733

Document: 003112597344

Page: 1

Date Filed: 04/19/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-2733
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UNITED STATES OF AMERICA
v.
JOSEPH BRANT,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 3-15-cr-00156-001)
Honorable James M. Munley, District Judge
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Submitted under Third Circuit L.A.R. 34.1(a)
March 17, 2017
BEFORE: GREENAWAY, JR., SHWARTZ, and GREENBERG, Circuit Judges
(Filed: April 19, 2017)
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OPINION*
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____________________
*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

Case: 16-2733

Document: 003112597344

Page: 2

Date Filed: 04/19/2017

GREENBERG, Circuit Judge.

This matter comes on before this Court on an appeal from a sentence that the
District Court imposed on defendant-appellant Joseph Brant on June 2, 2016, following
his plea of guilty to a violation of the Sexual Offender Registration and Notification Act,
18 U.S.C. § 2250(a). Brant had been convicted in a state court in New York for a sexual
offense involving a minor in 2000 and consequently was required to register as a sex
offender under New York law. The registration requirements included an obligation to
update his registration in New York within ten days if he moved his residence. Brant
moved to Pennsylvania in December 2014 but did not update his registration in New
York or promptly register in Pennsylvania though he ultimately untimely registered as a
sex offender in Pennsylvania after the initiation of these proceedings against him.
As a result of his offense, a grand jury in the Middle District of Pennsylvania
indicted him on July 28, 2015, for a violation of 18 U.S.C. § 2250(a).1 The indictment
led to plea negotiations that culminated in a plea agreement filed on February 12, 2016,
that included a provision that Brant “waive[d] the right to appeal [from his] conviction
and sentence.” Supp. App. at 18. In the presentence report the probation officer
determined that his offense level was 13 and his criminal history category was VI,
calculations that established without dispute that his advisory custodial range was 33 to
The indictment is ambiguous because it does not indicate whether Brant’s underlying
state law offense was a failure to update his New York registration or a failure to register
in Pennsylvania. Nevertheless, Brant did not move to dismiss the indictment in the
District Court and he does not challenge it on this appeal. The transcript of the plea
proceedings suggests that the Assistant United States Attorney thought that Brant’s
offense was his failure to register in Pennsylvania.
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Case: 16-2733

Document: 003112597344

Page: 3

Date Filed: 04/19/2017

41 months. The District Court sentenced Brant to a 41-month custodial term to be
followed by five years of supervised release. Notwithstanding the waiver of his right to
appeal, Brant has appealed as he contends that the 41-month sentence “was unreasonable
under the totality of circumstance surrounding this case.” Appellant’s br. at 4. The
District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28
U.S.C. § 1291.
We will dismiss this appeal. As we indicated in United States v. Khattak, 273
F.3d 557, 558 (3d Cir. 2001), a waiver of the right to appeal in a plea agreement is valid
and enforceable provided that the defendant entered into the agreement knowingly and
voluntarily. In Khattak, we indicated that we might allow an appeal even in the face of a
waiver if enforcement of the waiver could result in a miscarriage of justice. Id. at 563.
Here there is no such miscarriage of justice that requires us to entertain the appeal. After
all, the Court imposed a sentence within, though at the top of the sentencing guideline
range, and Brant does not claim that he was not guilty of the offense for which he was
indicted.
For the foregoing reasons, we will dismiss this appeal.

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