United States of America v. Keith Scutching

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2522
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UNITED STATES OF AMERICA,
v.
KEITH SCUTCHING,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 07-cr-0146-1 and 07-cr-0613-1)
District Judge: Honorable Robert F. Kelly
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Submitted Under Third Circuit LAR 34.1(a)
on September 30, 2009
Before: RENDELL, AMBRO, and WEIS, Circuit Judges.
(Filed October 9, 2009 )
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Keith Scutching challenges his sentence of 63 months’ imprisonment–a term
within the applicable Guidelines range of 63 to 78 months–arguing that the District Court
failed meaningfully to consider his personal history and characteristics, as required under

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The plea agreement provides in pertinent part:1
10. In exchange for the undertakings made by the government in
entering this plea agreement, the defendant voluntarily and expressly
waives all rights to appeal or collaterally attack the defendant’s
conviction, sentence, or any other matter relating to this prosecution,
whether such a right to appeal or collateral attack arises under
18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other
provision of law. This waiver is not intended to bar the assertion of
constitutional claims that the relevant case law holds cannot be
waived . . . .
b. If the government does not appeal, then notwithstanding the waiver
provision set forth in this paragraph, the defendant may file a direct appeal
but may raise only claims that:
(1) the defendant’s sentence on any count of conviction exceeds
the statutory maximum for that count as set forth in paragraph
6 above;
(2) the sentencing judge erroneously departed upward pursuant to the
Sentencing Guidelines; and/or
(3) the sentencing judge, exercising the Court’s discretion pursuant to
United States v. Booker, 125 S.Ct. 738 (2005), imposed an
unreasonable sentence above the final Sentencing Guideline range
determined by the Court.
S.A. 6-7 (emphasis added). None of these exclusions apply here, as the sentence imposed
was within the applicable Guidelines range, and Scutching’s challenge to his sentence
under § 3553(a) does not implicate a “constitutional claim[] that the relevant case law
holds cannot be waived.” S.A. 6; see also United States v. Gwinnett, 483 F.3d 200, 205-
06 (3d Cir. 2007).
2
18 U.S.C. § 3553(a)(1). In a written guilty plea, Scutching waived his right to appeal the
sentence imposed. Supplemental Appendix (“S.A.”) 6-7. Accordingly, the government1
asks the Court to affirm the sentence imposed, without reaching the merits of Scutching’s
challenge.

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3
Where the government invokes an appellate waiver as a bar to our review, a
defendant “must raise any challenge to the waiver’s enforceability.” United States v.
Goodson, 544 F.3d 529, 536 (3d Cir. 2008); see also United States v. Miliano, 480 F.3d
605, 608 (1st Cir. 2007). Scutching does not contest the validity of the waiver, which we
independently conclude is enforceable here.
Accordingly, we will AFFIRM the Judgment and Commitment Order of the
District Court.

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