United States v. Elliott ( 2022 )

20-3824-cr (L)
United States v. Elliott
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 22nd day of September, two thousand twenty-two.
4
5 PRESENT: REENA RAGGI,
6 RICHARD C. WESLEY,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges.
9 ------------------------------------------------------------------
10 UNITED STATES OF AMERICA,
11
12 Appellee,
13
14 v. Nos. 20-3824-cr,
15 21-60-cr
16
17 ALEXANDER ELLIOTT, AKA ALEX
18 CAMACHO, AKA SEALED DEFENDANT #5,
19
20 Defendant-Appellant.
21 ------------------------------------------------------------------
1 FOR DEFENDANT-APPELLANT: Jeffrey R. Parry, Esq.,
2 Fayetteville, NY
3
4 FOR APPELLEE: Geoffrey J.L. Brown, Thomas
5 R. Sutcliffe, Assistant United
6 States Attorneys, for Carla B.
7 Freedman, United States
8 Attorney for the Northern
9 District of New York,
10 Syracuse, NY
11 Appeal from a judgment of the United States District Court for the
12 Northern District of New York (David N. Hurd, Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the appeal is DISMISSED.
15 Alexander Elliott appeals from a judgment of conviction entered on
16 November 10, 2020, in the United States District Court for the Northern District
17 of New York (Hurd, J.), following his guilty plea to conspiring to distribute one
18 hundred kilograms or more of marijuana, in violation of 21 U.S.C. §§ 846,
19 841(a)(1), and 841(b)(1)(B). Elliott was sentenced principally to a term of
20 imprisonment of 140 months. We assume the parties’ familiarity with the
21 underlying facts and the record of prior proceedings, to which we refer only as
22 necessary to explain our decision.
2
1 As part of his plea agreement, Elliott waived any right to appeal or
2 collaterally attack his conviction or “[a]ny sentence to a term of imprisonment of
3 327 months or less.” App’x 85–86. During his plea hearing, Elliott
4 acknowledged that he had reviewed the plea agreement with his attorney, both
5 the Government and the District Court advised Elliott of the appeal waiver
6 provision in the agreement, and Elliott confirmed that he understood the
7 provision and still wished to plead guilty. App’x 38–40, 49–50. Elliott thus
8 knowingly, voluntarily, and competently waived his right to challenge on appeal
9 the term of imprisonment that he received. On appeal, Elliott nevertheless
10 claims that the appeal waiver is unenforceable, and that he may now challenge
11 his sentence of 140 months’ imprisonment. We are not persuaded.
12 “This Court has repeatedly held that a knowing and voluntary waiver of
13 the right to appeal a sentence is presumptively enforceable.” United States v.
14 Ojeda, 946 F.3d 622, 629 (2d Cir. 2020). The few exceptions to the enforceability
15 of such a waiver include: “(1) where the waiver was not made knowingly,
16 voluntarily, and competently; (2) where the sentence was based on
17 constitutionally impermissible factors, such as ethnic, racial or other prohibited
3
1 biases; (3) where the government breached the agreement containing the waiver;
2 and (4) where the district court failed to enunciate any rationale for the
3 defendant’s sentence.” United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017)
4 (quotation marks omitted). As we explained in United States v. Riggi, 649 F.3d
5 143 (2d Cir. 2011), our analysis turns on “the nature of the right at issue and
6 whether the sentence was reached in a manner that the plea agreement did not
7 anticipate.” Id. at 148 (quotation marks omitted). “[A] defendant pleading
8 guilty can waive elemental constitutional and statutory rights.” Id. (quotation
9 marks omitted). But only under very limited circumstances can waiver of such
10 rights have such an “overriding impact on public interests” that it may
11 “irreparably discredit the federal courts” and require reconsideration of the
12 defendant's sentence. Id. (quotation marks omitted).
13 With these principles in mind, we conclude that Elliott’s appeal waiver is
14 enforceable. To begin, Elliott argues that the 327-month term of imprisonment
15 referenced in the appeal waiver provision of his plea agreement far exceeded the
16 235-month maximum sentence reflected in his Pre-Sentence Report. He appears
17 to claim that the agreement must be voided as the product of a mutual mistake
4
1 by the parties concerning the correct Guidelines sentence because the appeal
2 waiver “contemplates an impossibility.” Appellant’s Br. 1. But even “[a]
3 mutual mistake concerning the proper Guidelines range is an insufficient basis to
4 void a plea agreement,” particularly where the plea agreement contains “express
5 provisions with respect to the possibility of a mistaken prediction as to
6 sentencing calculations.” Riggi, 649 F.3d at 149 (quoting United States v. Rosen,
7 409 F.3d 535, 548–49 (2d Cir. 2005)). Here, Elliott’s plea agreement provided
8 that any estimate of the sentencing guidelines range “is preliminary” and “is not
9 binding on the parties to this agreement, the Probation Office, or the Court.”
10 App’x 89. “An agreement that has made such express provisions with respect
11 to the possibility of a mistaken prediction as to sentencing calculations is not a
12 proper candidate for rescission on the ground of mutual mistake when that
13 possibility has come to fruition.” Rosen, 409 F.3d at 548–49. 1 We thus need not
14 decide whether the 327-month term of imprisonment referenced in the appeal
1
Rosen did not involve an appeal waiver provision, but as we noted in Riggi, “we see
no reason why Rosen’s approach would not be valid in this context as well.” Riggi,
649 F.3d at 149.
5
1 waiver provision was possible or realistic in order to determine that the waiver
2 itself was enforceable.
3 Next we address Elliott’s argument that his 140-month sentence is
4 procedurally and substantively unreasonable. As for his procedural challenge,
5 Elliott argues that the District Court improperly weighed the factors set forth in
6 18 U.S.C. § 3553(a). He also insists that the sentence imposed by the District
7 Court, though below the statutory maximum and at the lower end of the
8 applicable Guidelines range, is disproportionate to his marijuana offense of
9 conviction and therefore substantively unreasonable. Elliott’s appeal waiver
10 precludes his present challenge to the substantive and procedural reasonableness
11 of his sentence. Indeed, “we have upheld waiver provisions even in
12 circumstances where the sentence was conceivably imposed in an illegal fashion
13 or in violation of the Guidelines, but yet was still within the range contemplated
14 in the plea agreement.” United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir.
15 2000).
16 Finally, we turn to Elliott’s Eighth Amendment challenge to the length of
17 his sentence. An appeal waiver provision is unenforceable if “a fundamental
6
1 right” was violated or the defendant’s “sentence was reached in a manner that
2 the plea agreement did not anticipate.” Riggi, 649 F.3d at 147-48 (quotation
3 marks omitted). Otherwise, a defendant can waive his right to appeal a range of
4 “meaningful errors,” including violations of “elemental constitutional and
5 statutory rights.” Id. (quotation marks omitted). Thus, an appeal waiver
6 provision is not unenforceable simply because a defendant argues that his
7 sentence violated a constitutional provision. Here, Elliott does not persuasively
8 claim that “a fundamental right” was violated or that his “sentence was reached
9 in a manner that the plea agreement did not anticipate.” Id. We therefore
10 conclude that Elliott’s appeal waiver also precludes our review of his Eighth
11 Amendment challenge.
12 We have considered Elliott’s remaining arguments and conclude that they
13 are without merit. For the foregoing reasons, the appeal is DISMISSED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
7