United States v. Corso

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

12-15-2008

USA v. Corso

Precedential or Non-Precedential: Precedential

Docket No. 07-3901

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation

"USA v. Corso" (2008). 2008 Decisions. Paper 10.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/10

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-3901

UNITED STATES OF AMERICA

v.

JOHN D. CORSO, III,

Appellant

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 06-cr-00389)

District Judge: Honorable Gary L. Lancaster

Argued October 1, 2008

Before: FISHER, CHAGARES

and HARDIMAN, Circuit Judges.

(Filed: December 15, 2008)

Candace Cain (Argued)

Office of Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Attorney for Appellant

Robert L. Eberhardt

Laura S. Irwin (Argued)

Kelly R. Labby

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

FISHER, Circuit Judge.

Pursuant to a written plea agreement, John D. Corso, III

pleaded guilty to one count of theft of mail, in violation of 18

U.S.C. § 1708. The District Court sentenced him to twenty-one

months of imprisonment and two years of supervised release.

Corso appeals from the District Court’s judgment of sentence,

arguing that the District Court committed numerous procedural

errors in imposing his sentence and that his sentence is

substantively unreasonable. Because we conclude that Corso

validly waived the right to appeal his sentence, we will affirm.

2

I.

A.

John Corso worked as a driver for T. Wilson Trucking,

a private company that contracted with the United States Postal

Service to transport mail along certain “highway contract

routes” between Postal Service facilities in Pennsylvania. In

January 2005, postal inspectors determined that rifled mail

found in a collection box in Aliquippa had come from sources

along a contract route handled by Corso. In response, the

inspectors placed a “test letter” containing cash in a bundle of

first-class mail to be transported by Corso to a processing and

distribution center in Pittsburgh.

The inspectors covertly watched Corso collect the bundle

containing the test letter, but by the time he unloaded his cargo

in Pittsburgh the test letter was missing. After stopping Corso

before he could leave the distribution center, the inspectors

found the test letter, as well as four other stolen letters, in the

cab of his truck. When confronted, Corso first denied any

wrongdoing, but eventually admitted that he had stolen mail on

three or four occasions and that he had taken between five and

twenty-five pieces of mail each time.

B.

1.

On November 8, 2006, an indictment was returned in the

Western District of Pennsylvania charging Corso with five

3

counts of theft of mail in violation of 18 U.S.C. § 1708, one

count for each of the letters found in the cab of his truck. After

initially pleading not guilty, Corso eventually entered into a plea

agreement with the government. In the agreement, Corso agreed

to plead guilty to Count One of the indictment, acknowledged

his responsibility for the conduct charged in the remaining four

counts, and stipulated that the District Court could consider the

conduct charged in those four counts in imposing sentence. In

exchange for Corso’s guilty plea, the government agreed to

move to dismiss the remaining four counts against him and to

recommend a two-level reduction in offense level for acceptance

of responsibility under § 3E1.1 of the United States Sentencing

Guidelines. The parties made a non-binding stipulation that the

total loss resulting from the offense was $300.00 and agreed that

Corso faced a maximum term of imprisonment of five years and

a maximum term of supervised release of three years.

The plea agreement also contained an appellate-waiver

provision, which read as follows:

“8. John D. Corso, III waives the right to take

a direct appeal from his conviction or

sentence under 28 U.S.C. § 1291 or 18

U.S.C. § 3742, subject to the following

exceptions:

(a) If the United States appeals from

the sentence, John D. Corso, III

may take a direct appeal from the

sentence.

4

(b) If (1) the sentence exceeds the

applicable statutory limits set forth

in the United States Code, or

(2) the sentence unreasonably

exceeds the guideline range

determined by the Court under the

Sentencing Guidelines, John D.

Corso, III may take a direct appeal

from the sentence.

John D. Corso, III further waives the right

to file a motion to vacate sentence, under

28 U.S.C. § 2255, attacking his conviction

or sentence, and the right to file any

collateral proceeding attacking his

conviction or sentence.”

Corso and his attorney signed the plea agreement. By signing,

Corso acknowledged that he had read the agreement, had

discussed it with his attorney, and had accepted it.

2.

On June 1, 2007, the District Court held a change-of-plea

hearing, during which it engaged Corso in a colloquy intended

to ensure that he was knowingly and voluntarily entering his

guilty plea and that he understood the contents of his plea

agreement, as required by Federal Rule of Criminal Procedure

11(b). After placing Corso under oath, the District Court

reviewed with him the rights incident to pleading not guilty and

assured itself that Corso understood that, by changing his plea

5

to guilty, he was giving up those rights. The District Court also

confirmed that Corso was satisfied with the legal representation

he had received, that he had not been threatened or otherwise

coerced into pleading guilty, and that he understood the charges

against him, the maximum penalties that could be imposed, and

that the District Court was “not obligated to sentence [him]

within the guideline range” because the Sentencing Guidelines

“are not mandatory on [the court].”

At the District Court’s request, the prosecutor “outlined”

the substance of the plea agreement. But the prosecutor made

only one brief allusion to the agreement’s appellate-waiver

provision, mentioning that the agreement contained “the

standard language regarding waiver of appeal in that it sets forth

the only exceptions to it.” The District Court declined to expand

on the prosecutor’s synopsis, and at no point in the colloquy did

it explain to Corso the implications of the appellate-waiver

provision or inquire if he understood that he was waiving his

right to appeal.

Following the colloquy, Corso pleaded guilty to one

count of mail fraud. The District Court accepted Corso’s guilty

plea, finding that Corso was competent and capable of entering

an informed plea and that he was knowingly and voluntarily

pleading guilty.

3.

After the District Court accepted Corso’s guilty plea, the

United States Probation Office prepared a presentence report

(PSR) using the November 2006 Sentencing Guidelines.

6

Beginning with a base offense level of 6 under Guidelines

§ 2B1.1, the Probation Office recommended a four-level

enhancement under § 2B1.1(b)(2)(B) for an offense involving

between 50 and 250 victims, a two-level enhancement under

§ 3B1.3 for abuse of a position of trust, and a two-level

reduction under § 3E1.1 for acceptance of responsibility. The

resulting total offense level of 10, combined with Corso’s

criminal history category of V, yielded an advisory Guidelines

range of twenty-one to twenty-seven months of imprisonment.

On September 7, 2007, the District Court held a

sentencing hearing, at which Corso objected to both of the

PSR’s recommended sentencing enhancements. Corso objected

to the number-of-victims enhancement on the grounds that his

offense did not involve fifty or more victims (because the

stipulated total loss was $300) and that the Probation Office

erroneously relied on the “special rule” described in Application

Note 4(C)(ii)(I) to § 2B1.1 to justify presuming the contrary.1

The special rule was inapplicable, Corso argued, because the

delivery truck involved in his offense belonged to T. Wilson

Trucking, not the United States Postal Service, and thus was not

a “Postal Service delivery vehicle” within the meaning of the

application note. Corso objected to the abuse-of-trust

1

Application Note 4(C)(ii)(I) provides in relevant part:

“Special Rule.—A case [involving the theft or attempted theft

of United States mail from] a United States Postal Service relay

box, collection box, delivery vehicle, satchel, or cart, shall be

considered to have involved at least 50 victims.” U.S.S.G.

§ 2B1.1 cmt. n.4(C)(ii)(I).

7

enhancement on a similar ground, arguing that he was an

employee of a private trucking company, not of the Postal

Service, and, as such, was not in a position of trust as

contemplated by § 3B1.3.

The District Court rejected Corso’s arguments and, again

emphasizing that it understood that the Guidelines were advisory

in nature, accepted the PSR’s recommendations, including the

proposed enhancements and Guidelines range. After reviewing

the sentencing factors set forth in 18 U.S.C. § 3553(a) and

hearing the parties’ arguments, the District Court sentenced

Corso to twenty-one months of imprisonment and two years of

supervised release. It explained that Corso’s “personal

circumstances” were “simply not different enough to warrant a

sentence different from that recommended by the guidelines”

and that, “[i]n the Court’s view, the sentence will adequately

address the sentenc[ing] goals of punishment, rehabilitation and

deterrence.” It then told Corso the following:

“Sir, you have a right to appeal this sentence. If

you want to appeal this sentence, you must do so

within ten days. If you cannot afford the costs of

appeal, you may apply for leave to appeal in

forma pauperis. If you cannot afford an attorney,

I’ll appoint one to represent you free of charge.

Do you understand what your appeal rights are?”

Corso responded in the affirmative, and the government did not

object to, or otherwise attempt to correct, the District Court’s

statement.

8

Corso filed a timely notice of appeal, challenging his

sentence. On appeal, Corso argues that the District Court

committed procedural error by (1) erroneously applying the

number-of-victims and abuse-of-trust enhancements in

calculating his Guidelines range, (2) treating the Guidelines as

mandatory, and (3) failing to adequately consider the § 3553(a)

sentencing factors. He also contends that his sentence is

substantively unreasonable in light of the § 3553(a) factors.

The government argues that Corso’s appeal is barred by

the appellate-waiver provision contained in his plea agreement.

Corso responds that the waiver is inapplicable to this appeal

because his grounds for appeal fall within one of the waiver’s

exceptions. He also maintains that he did not knowingly and

voluntarily agree to the waiver because the District Court failed

during the colloquy at the change-of-plea hearing to adequately

inform him of the waiver’s terms and to ensure his

understanding of those terms, as required by Federal Rule of

Criminal Procedure 11(b)(1)(N).

II.

The District Court had subject matter jurisdiction under

18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a). See United States v. Gwinnett, 483

F.3d 200, 203 (3d Cir. 2007). Where, as here, the government

invokes an appellate-waiver provision contained in a

defendant’s plea agreement, we must determine as a threshold

matter whether the appellate waiver prevents us from exercising

our jurisdiction to review the merits of the defendant’s appeal.

See United States v. Goodson, 544 F.3d 529, 533-37 (3d Cir.

9

2008) (holding that an appellate waiver “has no bearing on an

appeal if the government does not invoke its terms”); Gwinnett,

483 F.3d at 203 (“[T]his court retains subject matter jurisdiction

over the appeal by a defendant who had signed an appellate

waiver.”).

Generally, our review of the validity and scope of

appellate waivers is plenary. United States v. Jackson, 523 F.3d

234, 237 (3d Cir. 2008); see also Goodson, 544 F.3d at 537 n.6.

But when a defendant seeks to set aside his appellate waiver

based on an unpreserved claim that the district court did not

conduct an adequate colloquy under Federal Rule of Criminal

Procedure 11(b)(1)(N), we review the alleged Rule 11 violation

for plain error. Goodson, 544 F.3d at 539 & n.9 (interpreting

United States v. Vonn, 535 U.S. 55 (2002)).

III.

A.

We will decline to exercise our jurisdiction to review the

merits of Corso’s appeal if we conclude (1) that the issues he

pursues on appeal fall within the scope of his appellate waiver

and (2) that he knowingly and voluntarily agreed to the appellate

waiver, unless (3) enforcing the waiver would work a

miscarriage of justice. Goodson, 544 F.3d at 536; Gwinnett, 483

F.3d at 203.

10

B.

In determining the scope of a plea agreement’s appellate-

waiver provision, we are guided by the “well-established

principle that ‘plea agreements, although arising in the criminal

context, are analyzed under contract law standards.’” Goodson,

544 F.3d at 535 n.3 (quoting United States v. Williams, 510 F.3d

416, 422 (3d Cir. 2007)). We have explained that, in light of

those standards, “the language of [an appellate] waiver, like the

language of a contract, matters greatly” to our analysis,

Goodson, 544 F.3d at 535, and that such waivers must be

“strictly construed.” United States v. Khattak, 273 F.3d 557,

562 (3d Cir. 2001); cf. Williams, 510 F.3d at 422 (“In view of

the government’s tremendous bargaining power courts will

strictly construe the text [of a plea agreement] against the

government when it has drafted the agreement.”). But we are

also mindful that “[u]nder contract principles, a plea agreement

necessarily ‘works both ways. Not only must the government

comply with its terms and conditions, but so must the

defendant.’” Williams, 510 F.3d at 422 (quoting United States

v. Carrara, 49 F.3d 105, 107 (3d Cir. 1995)). Thus, we will not

permit a defendant to “‘get the benefits of his plea bargain,

while evading the costs [because] contract law would not

support such a result.’” Id. (quoting United States v. Bernard,

373 F.3d 339, 345 (3d Cir. 2004)).

Here, the language of Corso’s appellate waiver is broad

in scope and clear: Corso agreed to waive the right to take a

direct appeal from his conviction or sentence under 28 U.S.C.

§ 1291 or 18 U.S.C. § 3742 unless (1) the government appealed

from the sentence, (2) the sentence exceeded the applicable

11

statutory limits set forth in the United States Code, or (3) the

sentence unreasonably exceeded the Guidelines range

determined by the District Court under the Sentencing

Guidelines. Corso does not claim that either of the first two

exceptions applies, conceding, as he must, that the government

has not appealed his sentence and that the twenty-one months of

imprisonment he received does not exceed the statutory

maximum of five years. Nor does he dispute that his sentence

is within – indeed, at the bottom of – the Guidelines range of

twenty-one to twenty-seven months determined by the District

Court.

Instead, Corso asserts that the appellate waiver’s third

exception contains an implicit “presumption” that the District

Court would “correctly” apply the Guidelines in calculating his

Guidelines range, and argues that we may consider his appeal

because his twenty-one-month sentence unreasonably exceeds

“the correct sentencing range of 4-10 months,” i.e., the

Guidelines range that results if the number-of-victims and

abuse-of-trust enhancements are excluded from the District

Court’s calculations. Corso accurately notes that our

“reasonableness review relies on a district court’s reasoning

from the starting point of the correctly calculated Guidelines.”

United States v. Langford, 516 F.3d 205, 213 (3d Cir. 2008).

But Corso’s argument assumes the result he seeks, and we will

not review the District Court’s application of the sentencing

enhancements, or otherwise review his sentence for

reasonableness, if he validly waived his right to that review. Cf.

Khattak, 273 F.3d at 562 (“‘A waiver of the right to appeal

includes a waiver of the right to appeal difficult or debatable

legal issues – indeed, it includes a waiver of the right to appeal

12

blatant error.’” (quoting United States v. Howle, 166 F.3d 1166,

1169 (11th Cir. 1999))).

Corso looks for support to the First Circuit’s decision in

United States v. McCoy, which he cites for the proposition that

“a waiver forgoing ‘any appeal . . . if the sentence imposed

herein is within the guidelines’ does not waive the right to

appeal an alleged misapplication of the guidelines.” 508 F.3d

74, 78 (1st Cir. 2007) (alteration in original) (quoting United

States v. Bowden, 975 F.2d 1080, 1081 n.1 (4th Cir. 1992)). But

McCoy is inapposite. The narrow appellate-waiver provision at

issue in McCoy only barred certain enumerated categories of

appeal, including challenges to “any sentence that falls within

the guideline range.” Id. at 77-78. Because the defendant’s

challenge to the district court’s application of the Guidelines did

not fall within that (or any other) enumerated category, it was

necessarily permitted. Id. at 78. Corso’s appellate waiver, in

contrast, is broad, and an appeal that does not fall within one of

its three narrow exceptions is necessarily waived.

Moreover, Corso ignores the plain text of his waiver’s

third exception which, unlike the language at issue in McCoy,

permits appeal only if “the sentence unreasonably exceeds the

guideline range determined by the Court under the Sentencing

Guidelines.” (Emphasis added). That language explicitly

lodges broad discretion in the District Court to determine the

applicable Guidelines range; it certainly does not permit an

appeal challenging the District Court’s application of the

Guidelines. We conclude, therefore, that Corso’s appeal falls

within the scope of his appellate waiver.

13

C.

1.

We must next consider Corso’s argument that his waiver

was not knowing and voluntary because the District Court

violated Federal Rule of Criminal Procedure 11(b)(1)(N), which

requires a court, before accepting a guilty plea, to “address the

defendant personally in open court. During this address, the

court must inform the defendant of, and determine that the

defendant understands . . . the terms of any plea-agreement

provision waiving the right to appeal or to collaterally attack the

sentence.” Corso contends that the District Court failed during

its colloquy with him at the change-of-plea hearing both to

adequately inform him of the terms of his appellate waiver and

to ensure that he understood those terms.

Because Corso did not object before the District Court to

its purported Rule 11 error, he “has the burden to satisfy the

plain-error rule,” Vonn, 535 U.S. at 59, and must show (1) that

there was an error, i.e., a deviation from a legal rule, (2) that the

error was “plain,” i.e., clear or obvious, and (3) that the error

affected his substantial rights. See Johnson v. United States,

520 U.S. 461, 467 (1997); United States v. Olano, 507 U.S. 725,

732-34 (1993); see also Goodson, 544 F.3d at 539. But “relief

on plain-error review is in the discretion of the reviewing court,”

and even if all three conditions are met we will exercise our

discretion to correct the unpreserved error only if Corso

persuades us that (4) “a miscarriage of justice would otherwise

result,” that is, if “the error seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.” Olano,

14

507 U.S. at 736; see Vonn, 535 U.S. at 63; Johnson, 520 U.S. at

467. We may consult the entire record, and not simply the

record of the plea colloquy, when considering the effect of the

Rule 11 error. Vonn, 535 U.S. at 59; see also Goodson, 544

F.3d at 540.

2.

Corso has unquestionably met his burden under the first

two prongs of the plain-error analysis. Our review of the record

indicates that the District Court did not personally discuss the

appellate waiver with Corso, or even mention the waiver at any

point, depending instead on the prosecutor to “outline” the plea

agreement during the change-of-plea hearing. But nothing in

the plain language of Rule 11(b)(1) permits a district court to

delegate its responsibilities to “inform” and “determine” to the

government; the Rule provides that “the court must” do both of

those things. And even presuming that the District Court was

permitted to rely on the government in this manner, the

prosecutor’s cursory aside that Corso’s plea agreement “contains

the standard language regarding waiver of appeal in that it sets

forth the only exceptions to it” was plainly insufficient, adding

little to the District Court’s complete silence on the subject.

These failures were clearly error. Cf. Goodson, 544 F.3d at 540

(finding that the district court erred both when it “relied upon

the prosecutor’s recitation of the terms of the appellate waiver

to fulfill its obligation to inform the defendant of the specifics

of the waiver provision” and when it failed to verify that the

defendant understood the waiver).

15

3.

We then turn to the third prong of the plain-error

analysis, which requires Corso to show that his substantial rights

were affected by these errors. The Supreme Court has held that,

in order to demonstrate that substantial rights were affected, “a

defendant who seeks reversal of his conviction after a guilty

plea, on the ground that the district court committed plain error

under Rule 11, must show a reasonable probability that, but for

the error, he would not have entered the plea.” United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004); see United States

v. Hall, 515 F.3d 186, 194 (3d Cir. 2008). But where, as here,

the defendant does not seek the reversal of his conviction (i.e.,

does not seek to withdraw his guilty plea) but only challenges

the validity of his appellate waiver so that he may appeal from

his sentence, he is obliged to show a reasonable probability that

the Rule 11 error “precluded him from understanding that he

had a right to appeal and that he had substantially agreed to give

up that right.” Goodson, 544 F.3d at 541; see also United States

v. Sura, 511 F.3d 654, 662 (7th Cir. 2007) (“If the safeguard

required by Rule 11 is missing, the record must reveal an

adequate substitute for it, and the defendant must show why the

omission made a difference to him.”); United States v. Murdock,

398 F.3d 491, 497 (6th Cir. 2005) (holding that “a defendant can

prove that his substantial rights are affected when he shows that

the district court failed to comply with the key safeguard in

place to protect those rights and that there was no functional

substitute for that safeguard”); but cf. United States v. Borrero-

Acevedo, 533 F.3d 11, 18 (1st Cir. 2008) (holding that a

defendant “must show that the waiver of appellate rights was

deficient and that he would otherwise not have pled guilty” in

16

order to meet the burden to show that substantial rights are

affected). “The reasonable-probability standard is not the same

as, and should not be confused with, a requirement that a

defendant prove by a preponderance of the evidence that but for

error things would have been different.” Dominguez Benitez,

542 U.S. at 83 n.9.

In Goodson, we addressed some of the considerations

that inform our inquiry into whether an inadequate Rule 11

colloquy affected a defendant’s substantial rights. In that case,

the evidence in the record demonstrated that the defendant was

“college educated,” had “successfully perpetrated wire fraud and

the uttering of counterfeit checks,” and “was able to read the

plea letter and to comprehend the meaning of its provisions.”

544 F.3d at 540-41. Importantly, the record also demonstrated

that “the prosecutor generally discussed the terms of the

appellate waiver” during the change-of-plea hearing and that the

defendant “advised the Court that he understood that his right to

appeal was substantially limited.” Id. at 541. We also noted

that the defendant “had executed the acknowledgment on the

final page of his plea agreement, indicating that he had read the

agreement, which included the appeal waiver, and discussed it

with his counsel.” Id. Under those circumstances, we

concluded that the defendant had failed to meet his burden under

the third prong of the plain-error analysis. Id.

In this case, the record demonstrates that Corso, like the

defendant in Goodson, signed his plea agreement, confirming

that he had read the agreement and discussed it with his

attorney. But “[t]he point of Rule 11(b)(1)(N) is that a signed

piece of paper is not enough,” Sura, 511 F.3d at 662, and the

17

District Court made no effort to determine that Corso, whose

education is limited to a GED diploma, understood the effect of

his waiver on his right to appeal, or even whether he had

discussed the waiver with his attorney.2 And the prosecutor’s

fleeting reference to “the standard language regarding waiver of

2

As Corso indicates in his brief, the District Court later

compounded these clear errors when it unequivocally told Corso

at the end of the sentencing hearing that he had a “right to

appeal” his sentence. We acknowledge that the District Court

may have felt obligated to make those statements due to Federal

Rule of Criminal Procedure 32(j)(1)(B), which requires a court,

“regardless of the defendant’s plea,” to advise the defendant

after sentencing of “any” right to appeal the sentence. But we

believe that the District Court should have qualified its post-

sentencing remarks, ideally by explaining to Corso that his

appellate waiver, if valid, curtailed his ability to appeal issues

within its scope. At the very least, the District Court should

have acknowledged the existence of the appellate waiver and its

narrow exceptions. Cf. United States v. Tang, 214 F.3d 365, 370

(2d Cir. 2000) (explaining that sentencing judges “should not

give unqualified advice concerning a right to appeal” in cases

involving an appellate waiver). Nonetheless, such post-

sentencing remarks do not per se “render ineffective an

otherwise enforceable waiver of appellate rights. . . . [A] waiver

does not lose its effectiveness because the district judge gives

the defendant post-sentence advice inconsistent with the waiver

[because] no justifiable reliance has been placed by the

defendant on such advice.” United States v. Liriano-Blanco,

510 F.3d 168, 173 (2d Cir. 2007).

18

appeal,” without further exposition, can hardly be deemed a

“discussion” of the terms of Corso’s appellate waiver, much less

an adequate substitute for the missing safeguards of Rule

11(b)(1)(N). Cf. Goodson, 544 F.3d at 541; United States v.

Robinson, 455 F.3d 602, 610 (6th Cir. 2006) (concluding that

“substitutes for Rule 11 compliance” were present where the

prosecutor thoroughly explained the appellate-waiver provision

at the court’s request and the court independently ascertained

that the defendant understood the provision and had discussed

“all of the provisions” in the plea agreement with his attorney).

“In determining whether a waiver of appeal is ‘knowing and

voluntary,’ the role of the sentencing judge is critical.” Khattak,

273 F.3d at 563; cf. United States v. Schweitzer, 454 F.3d 197,

205 (3d Cir. 2006) (“There is simply no substitute for on-the-

record discussion and deliberation.”). Informed by the entire

record, we are satisfied that Corso has carried his burden to

show that the District Court’s near-total deviation from the

mandates of Rule 11(b)(1)(N) affected his substantial rights.

4.

But a clear error affecting substantial rights cannot,

“without more,” satisfy the fourth prong of the plain-error

analysis, Olano, 507 U.S. at 737, and the Supreme Court has

instructed that we are authorized “to correct only particularly

egregious errors” on plain-error review. United States v. Young,

470 U.S. 1, 15 (1985). We do not believe that Corso has

established that the District Court’s deficient colloquy seriously

affected the fairness, integrity, or public reputation of the

judicial proceedings.

19

Corso also argues that we should exercise our remedial

discretion to set aside his appellate waiver because the District

Court’s application of the number-of-victims and abuse-of-trust

enhancements in calculating his Guidelines range constitutes a

“miscarriage of justice.” But Corso’s focus on alleged

procedural errors in the determination of his sentence is

misplaced, and demonstrates “‘the logical failing of focusing on

the result of the proceeding, rather than on the right

relinquished, in analyzing whether an appeal waiver is valid.’”

United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007)

(quoting United States v. Hahn, 359 F.3d 1315, 1326 n.12 (10th

Cir. 2004)). Procedural errors of this nature cannot justify

setting aside an appellate waiver because “allow[ing] alleged

errors in computing a defendant’s sentence to render a waiver

unlawful would nullify the waiver based on the very sort of

claim it was intended to waive.” Id. Although the right to

appeal is one “of critical importance to a criminal defendant,”

Murdock, 398 F.3d at 498, we are unconvinced, on the record

here, that enforcing the appellate waiver in Corso’s plea

agreement would result in a miscarriage of justice. See Olano,

507 U.S. at 736; Johnson, 520 U.S. at 470; cf. United States v.

Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004) (holding

that enforcement of appellate waiver “would seriously affect the

fairness, integrity and public reputation of our plea proceedings”

where there was a “‘wholesale failure’ to comply with Rule 11

or otherwise ensure that [the defendant] understood the

consequences of waiving his right to appeal the sentence which

20

had yet to be imposed”).3 Accordingly, we will enforce Corso’s

appellate waiver and do not reach the merits of this appeal.

IV.

For the foregoing reasons, we will affirm the judgment

of the District Court.

3

We note that it is an open question whether, or the extent

to which, our analysis under the fourth prong of the plain-error

rule overlaps our other inquiry, guided by the non-exclusive list

of factors identified in United States v. Khattak, 273 F.3d 557,

563 (3d Cir. 2001), into “whether enforcing [an appellate]

waiver would work a miscarriage of justice.” United States v.

Jackson, 523 F.3d 234, 244 (3d Cir. 2008) (citing Khattak, 273

F.3d at 562 and United States v. Gwinnett, 483 F.3d 200, 203

(3d Cir. 2007)). We need not resolve that question here,

however, because we conclude that enforcing Corso’s appellate

waiver would not result in a miscarriage of justice under either

the plain-error rule or Khattak and its progeny.

21