NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 04-3130

UNITED STATES OF AMERICA

v. B E A T R IC E FOLK,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

F O R THE EASTERN DISTRICT OF PENNSYLVANIA

D.C. Crim. 00-cr-00471-1

D is tric t Judge: The Honorable Bruce W. Kauffman

Submitted Under Third Circuit LAR 34.1(a)

M a y 11, 2006

Before: BARRY, SMITH and TASHIMA,* Circuit Judges

(Opinion Filed: May 22, 2006)

OPINION

B A R R Y , Circuit Judge A p p e lla n t Beatrice Folk pled guilty to conspiracy to possess methamphetamine w ith the intent to distribute and to the possession of methamphetamine with the intent to d is trib u te . Prior to the Supreme Court's decision in United States v. Booker, 543 U.S.

2 2 0 (2005), Folk was sentenced by the United States District Court for the Eastern D istric t of Pennsylvania to seventy months in prison, the low end of the applicable G u id e lin e s range.1 She now appeals,2 challenging the legality of the sentence in light of B o o k e r.3 A p p lyin g the Supreme Court's decision in Booker, this Court, in United States v. D a v is, 407 F.3d 162 (3d Cir. 2005), ruled that "[a]lthough plain error jurisprudence g e n e ra lly places the burden on an appellant to demonstrate specific prejudice flowing f ro m the District Court's error, in this context ­ where mandatory sentencing was g o v e rn e d by an erroneous scheme ­ prejudice can be presumed." Id. at 165. The a p p e lla te remedy for such an error is to vacate the sentence and remand for resentencing u n d e r an advisory Guidelines framework. See id.

As part of her plea agreement, however, Folk "voluntarily and expressly waive[d] a ll rights to appeal" her sentence.4 We will enforce the waiver ­ the validity of which we re v ie w de novo ­ provided she "entered into [it] knowingly and voluntarily," and so long a s it does not "work a miscarriage of justice." United States v. Khattak, 273 F.3d 557, 5 6 0 (3d Cir. 2001). If valid, the waiver deprives us of jurisdiction over the appeal. See id . at 563. The government argues that we must enforce the waiver. We agree.

O u r decision in United States v. Lockett, 406 F.3d 207 (3d Cir. 2005) controls.

There, we held "that where a criminal defendant has voluntarily and knowingly entered in to a plea agreement in which he or she waives the right to appeal, the defendant is not e n title d to resentencing in light of Booker." Id. at 214. That the Supreme Court would in v a lid a te the mandatory Guidelines regime was "merely one of the risks that a c c o m p a n ie [ d ]" Folk's guilty plea and waiver of appeal. Id. ("The record reflects that L o c k e tt knowingly and voluntarily bargained for his plea agreement. He cannot now ask to re-bargain the waiver of his right to appeal because of changes in the law."). In short, th e "favorable change in the law," id., does not call into question the voluntary and k n o w in g nature of Folk's waiver of appeal. See Khattak, 273 F.3d at 561 (observing that "[w]aivers of the legal consequences of unknown future events are commonplace" and th a t their "prospective nature" does not "render a defendant's act unknowing") (citation an d internal quotation marks omitted).5 C o n se q u e n tly, we are without jurisdiction and will dismiss the appeal.

* The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of A p p e a ls for the Ninth Circuit, sitting by designation.

1 Folk benefitted from application of the "safety valve" provision found in U.S.S.G. §

5 C 1 .2 , which permitted the District Court to sentence below the applicable statutory m in im u m sentence of 120 months.

2 Under Federal Rule of Appellate Procedure 4(b), a criminal defendant has ten days w ith in which to file a notice of appeal from the later of the entry of the judgment or the f ilin g of a government appeal. The judgment of sentence and commitment order was e n te re d by the District Court on June 23, 2004, but Folk did not file her notice of appeal u n til July 23, 2004. On July 22, 2004, however, Folk filed an unopposed motion for an e x te n s io n of time within which to file her notice of appeal. See Fed. R. App. P. 4(b)(4) (" U p o n a finding of excusable neglect or good cause, the district court may--before or a f te r the time has expired, with or without motion and notice--extend the time to file a n o tic e of appeal for a period not to exceed 30 days from the expiration of the time o th e rw is e prescribed by this Rule 4(b)."). On August 3, 2004, the District Court granted th a t motion nunc pro tunc through July 23, 2004. The appeal is, therefore, timely, and o u r jurisdiction over it arises under 28U.S.C. § 1291 and 18U.S.C. § 3742.

3 Folk also argues that the District Court erred in refusing to grant her a downward d e p a rtu re based upon familial circumstances.

4 There were two exceptions to the waiver, neither of which is applicable here.

5 Nor does enforcement of the waiver, and the concomitant preservation of Folk's s e n te n c e at the low end of the then-mandatory Guidelines range, work "a miscarriage of ju s tic e ." Folk contends the District Court would have imposed a lighter sentence but for th e mandatory Guidelines. The District Court did, in fact, note its "limited discretion" to d e p a rt from the Guidelines and described this as a "very sad case." Those statements, at b e st, would only help Folk "demonstrate specific prejudice flowing from the District C o u rt's error," Davis, 407 F.3d at 165. Pursuant to Davis, however, such prejudice is p re su m e d , id., and does not on its own, according to Lockett, render a waiver of appeal u n e n f o rc e a b le .