IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 18-3554

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANNE MURUNGA,

Defendant-Appellant

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

UNITED STATES’ MOTION FOR SUMMARY ACTION AND DISMISSAL OF APPELLANT’S APPEAL

Defendant-Appellant Anne Murunga has appealed the district court’s order denying her motion to 
withdraw her guilty plea to harboring an alien for financial gain and the court’s final judgment 
sentencing her to 18 months’ imprisonment. Murunga’s appeal presents no substantial question, 
because she knowingly and voluntarily waived her right to appeal her conviction and sentence in her 
plea agreement and failed to offer any evidence that she was coerced into pleading
guilty.  Accordingly, pursuant to this Court’s Local Appellate Rule 27.4, the

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United States respectfully requests that this Court summarily affirm the district court’s order and 
final judgment and dismiss Murunga’s appeal.

BACKGROUND

In April 2014, a federal grand jury indicted Murunga in the United States District Court for the 
Eastern District of Pennsylvania. Doc. 1.¹ The indictment charged that Murunga harbored an alien, 
P.I., for financial gain in violation of 8 U.S.C. 1324(a)(1)(A)(iii) and (B)(i) (Count 1), and conspired with several co- defendants to harbor 
P.I. in violation of 8 U.S.C. 1324(a)(1)(A)(v)(I) (Count 2). Doc. 1.

On the eve of trial, in August 2014, Murunga pleaded guilty to alien harboring for financial gain 
(Count 1).  Ex. 1.  Murunga’s plea agreement contained a broad appellate waiver in which she 
“voluntarily and expressly waive[d] all rights to appeal or collaterally attack [her] 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.” Ex. 1, at 7. The district court held an extensive plea colloquy, in which it 
confirmed that Murunga understood the terms of the plea agreement and was pleading voluntarily and 
knowingly.  Ex. 2.  The court also

___________

¹ References to “Doc. ” are to documents on the district court’s docket. References to “Ex.     ” are to the attached exhibits.

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explained the appellate waiver to Murunga and confirmed that she was agreeing to relinquish her 
appellate rights, including the right to challenge any denial of a later motion to withdraw her 
guilty plea.  Ex. 2, at 36-41.

Murunga’s acknowledgements notwithstanding, she moved to withdraw her guilty plea over three years 
later, contending that she was factually innocent of the charges but that her former counsel and a 
government attorney had pressured her into pleading guilty against her wishes. Doc. 150, 155.² The 
court held an evidentiary hearing on the motion, at which Murunga presented no evidence other than 
her bare assertion that these individuals told her she would go to jail and lose her son, house, 
and job if she did not agree to everything in the plea agreement. Ex. 3, at 16-26, 34, 40-41. Murunga deliberately chose not to call her former counsel at the evidentiary hearing because his testimony would have contradicted her claim of coercion. Ex. 3, at 
53-54.  The court denied the motion to withdraw in a written order, concluding that Murunga had not 
satisfied this Court’s legal standard for withdrawal.  Ex. 4.

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² After Murunga pleaded guilty in 2014, her sentencing hearing was repeatedly continued at the 
government’s request because two other defendants involved in the harboring scheme had not yet been 
tried. See, e.g., Doc. 109.  A jury convicted those two defendants on June 6, 2017. See Verdict 
Form, United States v. Wood, No. 16-cr-271 (D.N.J.) (Doc. 99), appeals pending, Nos. 18-3597, 
18-3653 (3d Cir.). It was only after these convictions, when Murunga’s sentencing became more 
imminent and she faced likely incarceration because of her failure to cooperate in those 
prosecutions, that Murunga filed her motion to withdraw her guilty plea.

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The case proceeded to sentencing.  At the sentencing hearing, Murunga again admitted to engaging in 
the offense conduct and clarified that she was not being forced or threatened by her attorney or 
anybody else to admit guilt. Ex. 5, at 30-31. Over the government’s objection, the district court 
granted her a two-point reduction for acceptance of responsibility, yielding a total offense level 
of 16 and a recommended custodial sentence of 21-27 months.  Ex. 5, at 7-12, 28-29, 34-35.
The court granted a downward variance, imposed an 18-month sentence, and entered final judgment. 
Ex. 5, at 39-40; Ex. 6. The government then moved to dismiss Count 2 of the indictment (the 
conspiracy charge), which the court granted. Ex. 5, at 46.  Murunga timely appealed both the 
court’s order denying her motion to withdraw her guilty plea and its final judgment.  Doc. 172.

Murunga subsequently filed a motion for bail pending appeal in district court, listing the relevant 
factors for relief—including whether her appeal raised a substantial question of law or fact—with 
little elaboration as to how she satisfied them. Doc. 179. The court denied bail pending appeal, 
reasoning in relevant part that Murunga’s motion “offer[ed] no explanation as to why her appeal 
raises a substantial issue of law or fact” and essentially “renew[ed] her motion to withdraw her 
guilty plea.” Doc. 183, at 2. The court further observed that its denial of Murunga’s motion to 
withdraw did not raise a “substantial issue” because the court “relied on well-established Third 
Circuit precedent in finding that Murunga had

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failed to meet her substantial burden to establish a fair and just reason to withdraw her guilty 
plea.”  Doc. 183, at 2.

Murunga surrendered to the Bureau of Prisons on January 14, 2019, and is currently incarcerated.

DISCUSSION

This Court’s Local Appellate Rule 27.4(a) provides that “[a] party may move for summary action 
affirming * *  *  a judgment, decree or order, alleging that no substantial question is presented.” 
A “substantial question” is one “of more substance than would be necessary to a finding that it was 
not frivolous.” United States v. Smith, 793 F.2d 85, 89 (3d Cir. 1986) (interpreting “substantial 
question” in Bail Reform Act) (citation omitted), cert. denied, 479 U.S. 1031 (1987). There are no 
categories of substantial questions, and the determination must be made on a case-by-case basis.  
Ibid.  For a question to be substantial, the Court must find that it “is either novel,” “has not 
been decided by a controlling precedent,” or “is fairly doubtful.” United States v. Miller, 753 
F.2d 19, 23 (3d Cir. 1986). In other words, substantial questions are those that are fairly 
debatable among jurists. Smith, 793 F.2d at 89-90.

Because Murunga’s appeal presents no substantial question, this Court should summarily affirm the 
district court’s order denying Murunga’s motion to withdraw her guilty plea and the final judgment 
sentencing her to 18 months’

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imprisonment. As a threshold matter, Murunga is barred from bringing this appeal. In her plea 
agreement, Murunga knowingly and voluntarily waived the vast majority of her appellate rights, 
including her right to appeal the district court’s denial of any motion to withdraw her guilty 
plea. Enforcement of the appellate waiver provision would not result in a miscarriage of justice. 
Moreover, on the merits, Murunga’s motion to withdraw relied on her mere assertion, without 
evidence, that she was coerced into pleading guilty, which is insufficient to support withdrawal of 
the plea under this Court’s precedent.

A. Murunga Has Waived Her Right To Appeal Her Conviction, Including Her Right To Appeal The 
District Court’s Denial Of Her Motion To Withdraw The Guilty Plea

As a threshold matter, Murunga has waived her right to appeal the district court’s denial of her 
motion to withdraw her guilty plea via an appellate waiver provision in her plea agreement. Because 
no basis exists for Murunga to challenge the waiver as unenforceable or inapplicable, this Court 
should dismiss her appeal.

“Waivers of appeals, if entered into knowingly and voluntarily, are valid unless they work a 
miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). Here, 
Murunga’s plea agreement contained a broad appellate waiver. Under the agreement, Murunga 
“voluntarily and expressly waive[d] all rights to appeal or collaterally attack [her] conviction, 
sentence, or any other matter relating to this prosecution, whether such a right to appeal or 
collateral attack

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arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.” Ex. 1, at 7. Murunga only retained the right to challenge her conviction or sentence in three limited circumstances, none of which applies here: (1) cross appealing her sentence if the United States appealed her sentence; (2) appealing a sentence that exceeded the statutory maximum; and (3) filing a Section 2255 petition alleging ineffective assistance of counsel.  Ex. 1, at 7-8.

The district court’s plea colloquy with Murunga confirmed that she knowingly and voluntarily agreed 
to the appeal waiver despite her claim otherwise in her motion to withdraw. At the beginning of the 
colloquy, Murunga acknowledged that she had ample time to discuss the government’s case with her 
attorney and that the decision to plead guilty was hers. Ex. 2, at 9-10. The court asked Murunga 
whether anyone had threatened her, promised her anything, or done anything to get her to plead 
guilty. Ex. 2, at 11. Murunga answered in the negative and reiterated that the decision to plead 
guilty was hers because she was guilty. Ex. 2, at 11. The court then asked Murunga if she had 
reviewed the plea agreement “[p]age by page,” “[l]ine by line” and “cover to cover.”  Ex. 2, at 16.
Murunga responded that she had and that she had no questions or reservations about the agreement. 
Ex. 2, at 16-17. The district court also confirmed that Murunga discussed the plea agreement with 
her attorney and signed it. Ex. 2, at 33.

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The court then at several points made clear to Murunga that the agreement limited her appellate 
rights. Murunga asked for clarification but ultimately acknowledged that she understood that her 
appellate rights were significantly limited:

Ex. 2, at 36.

The court subsequently went into even more detail, reading the appeal waiver provision of the 
agreement and asking Murunga if she understood it. Again, Murunga answered affirmatively when the 
court asked Murunga whether “you understand that you are giving up, your right to appeal, your 
conviction, you[r] sentence or any matter relating to the prosecution of this case, whether such 
right to appeal or to attack arises under these provisions of law.” Ex. 2, at 37. The court then 
explained each of the exceptions to the appeal waiver, and Murunga and the court engaged in the 
following colloquy:

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Ex. 2, at 40-41. It is clear from the plea colloquy that Murunga knowingly and voluntarily waived 
her appellate rights. See United States v. Gwinnett, 483 F.3d 200, 203-205 (3d Cir. 2007) (holding 
that an appeal waiver is knowing and voluntary where the agreement is clear and the district court 
ensured that the defendant was fully competent and understood the agreement before signing it); see 
also United States v. Caste, 317 F. App’x 162, 165 (3d Cir. 2008) (finding an appeal waiver valid 
where the district court “confirmed that Caste signed the plea agreement and * * * reviewed it with 
his attorney” and “specifically verified that Caste understood that he ‘entered into a plea 
agreement under which [he has] waived some or all of [his] appeal rights, including the right to 
file a motion to vacate sentence or any other collateral proceeding attacking [his] conviction or 
sentence’”) (brackets in original).

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Moreover, enforcing the appeal waiver in this case would not work a miscarriage of justice.  This 
Court has repeatedly held that a defendant can, through a plea agreement, waive the right to appeal 
the denial of a later motion to withdraw the guilty plea. As the Court has explained, “[a]n appeal 
of a denial of a motion to withdraw a guilty plea constitutes a challenge to a defendant’s 
conviction that falls within the plain language of an appellate waiver provision.” United States v. 
Solomon, 330 F. App’x 337, 338 (3d Cir. 2009); see also United States v. Alcala, 678 F.3d 574, 578 
(7th Cir. 2012) (collecting cases for the proposition that “the Second, Third, Fourth, Eighth, 
Ninth, and Tenth Circuits have each held that when a defendant waives his right to appeal in a 
plea, he also waives his right to appeal a denial of his motion to withdraw that plea”).  Indeed, 
this Court enforced an appeal waiver in a case where the defendant made similarly unsupported 
allegations that his guilty plea was the result of pressure by his former counsel.  See United 
States v. Ray, 358 F. App’x 329, 331-333 & n.3 (3d Cir. 2009); see also United States v. Toth, 668 F.3d 374, 377-379 (6th Cir. 2012) (refusing to consider the merits of a defendant’s argument that his counsel had coerced him into pleading guilty).³

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³ The Ray Court denied the government’s motion for summary affirmance on the basis of the 
defendant’s appellate waiver. See 358 F. App’x at 331 n.1. In that case, the district court’s 
failure to confirm that the defendant understood that he was relinquishing the bulk of his 
appellate rights was plain error under this
(continued...)

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Accordingly, this Court should enforce the appellate waiver provision, summarily affirm the 
district court’s order denying Murunga’s motion to withdraw and its final judgment, and dismiss 
Murunga’s appeal.

B. Murunga’s Mere Assertion, Without Any Evidence, That She Was Factually Innocent And Coerced Into 
Pleading Guilty Is Insufficient For Withdrawal Of Her Guilty Plea

Even if this Court reaches the district court’s decision to deny Murunga’s motion to withdraw her 
guilty plea, it should summarily affirm Murunga’s conviction and sentence. Murunga argued below 
that she should be allowed to withdraw her guilty plea because she was factually innocent of the 
charges and her former counsel and a government attorney had coerced her into pleading guilty 
against her wishes. Doc. 150, 155. Even assuming that this Court can review the merits of this 
argument,⁴ Murunga’s failure to present any supporting evidence renders her challenge to the 
district court’s order insubstantial.

________

(...continued)
Court’s precedents, requiring the Court to determine whether such error affected the defendant’s 
substantial rights. As discussed above, this case presents no similar complications that render the 
enforceability of Murunga’s appeal waiver a fairly debatable issue among jurists.

⁴ This Court has previously addressed the merits of a district court’s denial of a motion to 
withdraw a guilty plea where the defendant asserted that enforcing an appellate waiver provision in 
his plea agreement would work a miscarriage of justice because his plea was coerced. See United 
States v. Wilson, 429 F.3d 455, 458-461 (3d Cir. 2005).  Notably, in seeking bail pending appeal in 
the district
(continued...)

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In denying Murunga’s motion to withdraw her guilty plea, the district court applied a 
well-established legal standard after holding an evidentiary hearing, and this Court reviews the 
denial of such a motion only for an abuse of discretion. United States v. King, 604 F.3d 125, 139 (3d Cir. 2010), cert. denied, 562 U.S. 1223 (2011). “Once a court accepts a defendant’s guilty plea, the defendant is not entitled to withdraw that plea 
simply at h[er] whim.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). Instead, the 
defendant has the “substantial” burden of “demonstrating a fair and just reason” for the withdrawal 
of her plea. Ibid. (internal quotation marks and citation omitted). A court deciding such a motion 
must consider three factors:  “(1) whether the defendant asserts [her] innocence;
(2) the strength of the defendant’s reasons for withdrawing the plea; and (3) whether the 
government would be prejudiced by the withdrawal.” Ibid.

The district court expressly cited and applied the above standard and correctly concluded that 
Murunga had not met her heavy burden. Ex. 4, at 1-2. As to the first factor, this Court has held 
that “[b]ald assertions of innocence are insufficient to permit a defendant to withdraw h[er] 
guilty plea.”  Jones, 336 F.3d at 252. Rather, “[a]ssertions of innocence must be buttressed by 
facts in the record that support a claimed defense.”  United States v. Brown, 250 F.3d 811, 818 (3d

__________

(...continued)
court, Murunga did not argue that the appellate waiver provision was unenforceable.

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Cir. 2001) (citation omitted).  Murunga fell well short of this standard, as she “made blanket 
assertions of her innocence, but failed to offer facts or submit evidence to support her claim.”  
Ex. 4, at 2.  Her claim that her former counsel and a government attorney coerced her into pleading 
guilty, without more, does not constitute supporting evidence under this Court’s precedent.  See 
Jones, 336 F.3d at 253 (defendant’s “mere[] allegat[ion] that his prior counsel had told him to 
agree to the facts” at the plea hearing failed to demonstrate the first factor).

Regarding the second factor, this Court has held that a defendant who has pleaded guilty and seeks 
to withdraw that plea must “give sufficient reasons to explain why contradictory positions were 
taken before the district court and why permission should be given to withdraw the guilty plea and 
reclaim the right to trial.” Jones, 336 F.3d at 253 (citation omitted). In finding Murunga’s 
explanation incredible, the court observed that she “gave clear answers throughout the Court’s 
inquiry” at the plea colloquy and even paused the proceedings to correct the record concerning the 
factual basis of her guilty plea, thus undercutting her claim that “she felt pressure to agree to 
everything that was presented to her by the Court and the Government.” Ex. 4, at 2. This 
credibility determination warrants deference from this Court. See United States v. Trott, 779 F.2d 
912, 915 (3d Cir. 1985) (district court’s finding that defendant was “calm and mentally alert,” 
contradicting his claim that “he was under emotional duress when he entered his plea,” was “an

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evaluation * * * primarily within the province of the district court” that did not warrant 
reversal).

Further undermining Murunga’s argument was her failure to offer “evidence demonstrating that her 
prior counsel or the Government coerced or forced her to accept the facts and terms of the plea 
agreement.” Ex. 4, at 2. Indeed, the court expressly found that Murunga “declined to call her 
former counsel to testify because his anticipated testimony was not favorable to her,” and that the 
government’s witness rebutted any claims that a prosecutor had coerced her to accept the plea deal. 
Ex. 4, at 2. Contradicting Murunga’s wholly unsupported assertions of coercion, moreover, are her 
earlier statements during the plea colloquy acknowledging that the decision to plead guilty was 
hers and disavowing any threats or promises by others to achieve that result. Ex. 2, at 9-11. 
Because Murunga uttered these earlier statements “under oath in open court,” they “carry a strong 
presumption of verity,” Ray, 358 F. App’x at 332 n.3 (citation omitted), and further support the 
district court’s conclusion that she failed to give sufficient reasons for withdrawing her guilty 
plea.⁵

__________

⁵ Because Murunga failed to show sufficient grounds to withdraw her guilty plea, the government was 
not required to show prejudice.  See Jones, 336 F.3d at 255. In any event, the district court addressed this third factor and found that the government would be prejudiced if Murunga were permitted to withdraw her guilty plea.  Ex. 4, at 2.

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Finally, in her bail motion before the district court, Murunga did not even attempt to challenge 
the district court’s reasoning or conclusions for holding her to her guilty plea. To the contrary, 
she simply listed the factors for relief, including whether her appeal raised a substantial 
question of law or fact, with little elaboration as to how she satisfied them. Doc. 179. That 
unsupported assertion is insufficient to raise a substantial question as to whether the district 
court abused its discretion in denying her motion to withdraw her guilty plea. Accordingly, if this 
Court reaches the merits of Murunga’s appeal, it should summarily affirm both the district court’s 
order denying her motion to withdraw her guilty plea and its final judgment.

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CONCLUSION

The Court should grant the United States’ motion and summarily affirm both the district court’s 
order denying Murunga’s motion to withdraw her guilty plea and its final judgment sentencing her to 
18 months’ imprisonment.

Respectfully submitted,

ERIC S. DREIBAND
Assistant Attorney General

 

s/ Christopher C. Wang

ERIN H. FLYNN

CHRISTOPHER C. WANG

Attorneys

Department of Justice

Civil Rights Division

Appellate  Section

Ben Franklin Station

P.O. Box 14403

Washington, D.C. 20044-4403

(202) 514-9115

CERTIFICATE OF COMPLIANCE

I certify that the attached UNITED STATES’ MOTION FOR SUMMARY ACTION AND DISMISSAL OF APPELLANT’S 
APPEAL:

(1) complies with the type-volume limitation in Federal Rule of Appellate Procedure 27(d)(2)(A) 
because it contains 3462 words; and

(2) complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the 
type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been 
prepared in a proportionally spaced typeface using Word 2016, in 14-point Times New Roman font.

 

s/ Christopher C. Wang

CHRISTOPHER C. WANG
Attorney

Date:  April 30, 2019

 

CERTIFICATE OF SERVICE

I hereby certify that on April 30, 2019, I electronically filed the foregoing UNITED STATES’ MOTION FOR SUMMARY ACTION AND DISMISSAL OF APPELLANT’S APPEAL with the Clerk of the Court for the United States Court of Appeals for the Third Circuit using the appellate CM/ECF system.

I further certify that all parties are CM/ECF registered, and service will be accomplished by the 
appellate CM/ECF system.

 

s/ Christopher C. Wang

CHRISTOPHER C. WANG
Attorney