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United States v. Chubbs

United States District Court, Third Circuit

August 8, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JODY CHUBBS, Defendant. Crim. No. 07-118-SLR

MEMORANDUM ORDER

SUE L. ROBINSON, District Judge.

At Wilmington this 8th day of August, 2013, having considered plaintiff's motion to dismiss and the papers submitted in connection therewith;

IT IS ORDERED that, for the reasons that follow, plaintiff's motion to dismiss defendant's motion to vacate, set aside or correct sentence (D. I. 83) is granted.

1. Background. On September 4, 2007, a federal grand jury returned a seven count indictment charging defendant with bank fraud, social security fraud, and aggravated identity theft. (D. I. 11) A superseding indictment was filed on November 6, 2007, charging defendant with ten counts of new criminal conduct, including bank fraud and credit card fraud. (D. I. 23) The grand jury returned a second superseding indictment on April 1, 2008, charging defendant with additional counts of bank fraud, aggravated identity theft, and wire fraud. (D. I. 36)

2. On November 18, 2008, defendant entered a plea of guilty to eight counts of bank fraud and seven counts of credit card theft. (D. I. 53) The plea agreement provided, in part:

The defendant knowingly and voluntarily waives the right to take a direct appeal from her conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, and further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking her conviction or sentence, and the right to file any other collateral proceeding attacking her conviction or sentence. This waiver is subject to the following exceptions: (a) if the United States appeals from the sentence, the defendant may take a direct appeal from the sentence; (b) the defendant may appeal on the ground that the sentence exceeds the applicable statutory limits set forth in the United States Code; (c) the defendant may appeal any application of upward enhancements under the United States Sentencing Guidelines other than those outlined in this plea agreement; and (d) the defendant may appeal any upward variance pursuant to 18 U.S.C. § 3553(a) from the final sentencing guideline range as calculated by the District Court.

(D. I. 54) (emphasis added).

3. During the plea colloquy, the court reviewed each paragraph and posed specific questions to defendant with respect to each section of the plea agreement.[1] (D.I. 75 at 4-9) Specifically, with regard to the waiver issue, the court stated:

Paragraph 11 is probably one of the most important paragraphs in this [plea agreement] and we will go over it carefully.
In this paragraph, you have knowingly and voluntarily waived the right to take a direct appeal from your conviction or sentence under Title 28 of the United States Code, Section 1291, or Title 18 of the United States Code, Section 3742, and you have further waived the right file a motion to vacate sentence under Title 28 of the United States Code, Section 2255, attacking your conviction or sentence, and the right to file any other collateral proceeding attacking your conviction or sentence.
This waiver is subject to the following exceptions. First, if the United States appeals from the sentence, you may take a direct appeal. Of course, usually the government will only appeal if the sentence is too low. I suspect you wouldn't want to appeal from that, so I don't know how significant that exception is.
The second exception is that you may appeal on the ground that the sentence exceeds the applicable statutory limits. That has never happened in this court, so I don't know how substantive that exception is, but it is an exception.
Third, you may appeal any application of upward enhancements under the United States Sentencing Guidelines other than those outlined in this plea agreement. The government has reserved the right to ask for more enhancements. If it does and the court grants them, it appears to me as though you may appeal that.
And, finally, you may appeal any upward variance pursuant to Title 18 of the United States Code, Section 3553(a) from the final sentencing ...

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