United States v. Britton , 480 F. App'x 631 ( 2012 )

11-2120-cr
United States v. Britton
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of May, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 J. GARVAN MURTHA,
10 District Judge.*
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 11-2120-cr
19
20 RONALD BRITTON,
21
22 Defendant-Appellant,
23
24 DEVON JOHNSON, JERMEL PERINEAU, JOSEPH
25 GUERINO, AKA GUERINO JOSEPH,
26
27 Defendants.
28
29
30
*
The Honorable J. Garvan Murtha, of the United States District Court for
the District of Vermont, sitting by designation.
1 FOR APPELLANT: Sally Wasserman, Law Office of Sally
2 Wasserman, New York, NY.
3
4 FOR APPELLEE: Zainab Ahmad, Assistant United States
5 Attorney (Emily Berger, Assistant United
6 States Attorney, on the brief), for
7 Loretta E. Lynch, United States Attorney
8 for the Eastern District of New York,
9 Brooklyn, NY.
10
11 Appeal from the United States District Court for the
12 Eastern District of New York (Vitaliano, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the judgment of the United States District
16 Court for the Eastern District of New York be AFFIRMED.
17 Appellant Ronald Britton appeals from a judgment of the
18 United States District Court for the Eastern District of New
19 York (Vitaliano, J.), which sentenced Britton to 180 months’
20 incarceration on his plea of guilty to robbery conspiracy in
21 violation of 18 U.S.C. § 1951(a) and use of a firearm during
22 a crime of violence in violation of 18 U.S.C. §
23 924(c)(1)(A)(ii). The district court also imposed a
24 restitution order of $49,450. We assume the parties’
25 familiarity with the underlying facts, the procedural
26 history, and the issues presented for review.
27 Britton raises three issues on appeal. He argues that
28 (1) the district court committed reversible error in
29 including two New York juvenile delinquency adjudications
2
1 when calculating Britton’s criminal history category; (2)
2 this Court should vacate his sentence because the government
3 miscalculated the applicable offense level under the United
4 States Sentencing Guidelines (“the Guidelines”) in its plea
5 agreement with Britton, thus exposing Britton to a
6 substantially higher sentence than he had contemplated when
7 pleading guilty; and (3) this Court should vacate the
8 restitution order imposed on Britton because the district
9 court failed to take into account Britton’s financial
10 circumstances and other obligations when fashioning the
11 payment schedule.
12 We reject Britton’s argument that the district court
13 committed reversible error in including two New York
14 criminal delinquency adjudications in calculating Britton’s
15 criminal history category. Specifically, Britton contends
16 that his juvenile delinquency adjudications are “expunged”
17 convictions and thus should have been excluded under
18 U.S.S.G. § 4A1.2(j). Because Britton did not object on this
19 ground below, either in his objections to the Presentence
20 Report (“PSR”) or at the sentencing hearing, we review for
21 plain error only.
22
3
1 The Guidelines provide that two criminal history points
2 should be added for each juvenile sentence to confinement of
3 at least 60 days if the defendant was released from that
4 confinement within five years of committing the instant
5 offense. U.S.S.G. § 4A1.2(d)(2)(A). However, “[s]entences
6 for expunged convictions are not counted.” U.S.S.G. §
7 4A1.2(j). The Guidelines do not define when a conviction is
8 expunged. This Court has held that a conviction is
9 “expunged” if the relevant statute “effectively eliminate[s]
10 all vestiges of the adjudication.” See United States v.
11 Matthews, 205 F.3d 544, 547 (2d Cir. 2000); see also United
12 States v. Beaulieau, 959 F.2d 375, 380-81 (2d Cir. 1992).
13 The New York Family Court Act provides that “another
14 court, in imposing sentence upon an adult after conviction
15 may receive and consider the records and information on file
16 with the family court, unless such records and information
17 have been sealed pursuant to § 375.1 [of the Family Court
18 Act, which provides for sealing of records upon termination
19 of a juvenile proceeding in favor of the juvenile].” N.Y.
20 Fam. Ct. Act § 381.2. If the defendant’s record is not
21 sealed pursuant to § 375.1, vestiges of the juvenile
22 delinquency adjudication remain and thus such adjudications
4
1 are not considered “expunged” under U.S.S.G. § 4A1.2(j).
2 See Matthews, 205 F.3d at 547; Beaulieau, 959 F.2d at 380-
3 81. Even if it would constitute error for the district
4 court to include juvenile delinquency adjudications sealed
5 pursuant to § 375.1 in calculating a defendant’s criminal
6 history category, there was nothing before the district
7 court that made it clear or obvious that Britton’s juvenile
8 records were sealed pursuant to that section. Therefore,
9 the district court did not commit error, let alone plain
10 error.
11 Similarly unavailing is Britton’s claim that the
12 government’s mistake in calculating his offense level in the
13 plea agreement rendered the resulting sentence unreasonable
14 or unfair. The plea agreement provided that the Guidelines
15 calculation contained therein was an “estimate,” that such
16 estimate was not binding on the government or the Court, and
17 that a mistake in the estimate would not entitle Britton to
18 withdraw his plea. Further, before the district court
19 accepted Britton’s plea, it made sure that he was fully
20 aware that a mistake in the plea agreement’s Guidelines
21 calculations would not give him a basis to withdraw the
22 plea. There is no evidence–and Britton does not argue–that
5
1 the government acted in bad faith. Under these
2 circumstances, vacatur of Britton’s sentence is not
3 warranted. See United States v. Habbas, 527 F.3d 266, 271
4 (2d Cir. 2008).
5 Finally, Britton argues that the district court
6 committed plain error in imposing restitution in the amount
7 of $49,450. In particular, Britton complains that (1) the
8 district court never considered Britton’s financial
9 resources and other financial obligations in fashioning the
10 restitution order, and (2) the district court’s election to
11 impose the full burden of restitution on Britton even though
12 there were other defendants is “troubling.” Britton’s
13 arguments are without merit. The order itself, requiring
14 Britton to pay $25 each quarter while incarcerated and 10%
15 of gross income while on supervised release, reflects
16 consideration of Britton’s financial resources. Further,
17 there is nothing “troubling” about the district court
18 imposing the “full burden” of restitution on Britton. The
19 relevant statute specifically provides that “[i]f the court
20 finds that more than [one] defendant has contributed to the
21 loss of a victim, the court may make each defendant liable
22 for payment of the full amount of restitution.” 18 U.S.C. §
23 3664(h).
6
1 We have considered all of Britton’s remaining
2 arguments, and after a thorough review of the record, we
3 find them to be without merit.
4 For the foregoing reasons, the judgment of the district
5 court is hereby AFFIRMED.
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
7