APPELLATE LAW – CRIMINAL

Contract • Interpretation • Banking Crimes • Fraud

U.S. v. Richard Banks, PICS Case No.14-0288 (3d Cir. Feb. 12, 2013) Nygaard, J. (8 pages).

Appellant Richard Banks appealed his sentence resulting from violating the terms of his supervised release by committing bank fraud. Sentence affirmed.

During Banks’ supervised release in 201? for a bank fraud conviction, police arrested him for conspiring to steal or create more than 75 fraudulent checks in the attempted theft of more than $130,000. Banks pled guilty to one count of conspiracy to commit bank fraud pursuant to a plea agreement. The plea agreement contained language permitting sentencing to be in the discretion of the judge, subject to the provisions of the Sentencing Reform Act, 18 U.S.C. §3551-3742. Further, the plea agreement indicated the judge could impose any reasonable sentence up to and including the statutory maximum term of imprisonment and the maximum statutory fine. In addition, the plea agreement indicated that the sentence could be served consecutively with any other sentence to which Banks might be serving at the time. Banks signed the voluntary waiver of right to appeal as part of the plea agreement.

Prior to the guilty plea, Banks assisted the government with numerous convictions. Because he cooperated, the district court imposed a prison term of 18 months for the bank fraud, but denied Banks’ request for a reduction and the supervised release violation and denied the term be concurrently served.

Banks argued that the appellate waiver in his plea agreement did not apply to the district court’s decision to sentence him to consecutive terms of imprisonment for the supervised release violation.

The appellate court exercised its plenary review to determine whether Banks’ issue fell within the scope of his appellate waiver. The court denied Banks’ appeal, ruling he knowingly signed the appellate waiver and the evidence failed to support the parties intended to exclude consecutive sentencing from his broadly inclusive waiver of any appeal. The court found the plain language of the agreement prohibited Banks from any appeal on his sentence. Moreover, U.S.S.G. §7B1.3(f) conveyed a strong preference for a consecutive sentence in precisely the scenario encountered here. In addition, the court denied Banks’ argument that the language in the plea agreement was ambiguous as to the discretion of the district court to impose consecutive sentences. Finally the court found the sentence to be reasonable and in compliance with the sentencing guidelines. The court held the waiver would be enforced and the sentence imposed affirmed.