United States v. Ramirez , 434 F. App'x 39 ( 2011 )

10-4866-cr
United States v. Kelly
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 11th day of October, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-4866-cr
17
18 JOHN RAMIREZ,
19 Defendant
20
21 JONATHAN KELLY,
22 Defendant-Appellant.
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1 FOR APPELLANT: Robert Peter LaRusso, Mineola,
2 New York.
3
4 FOR APPELLEES: Susan Corkery, Berit W. Berger,
5 for Loretta E. Lynch, United
6 States Attorneys Office for the
7 Eastern District of New York,
8 New York, New York.
9
10 Appeal from a judgment of the United States District
11 Court for the Eastern District of New York (Johnson, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17 Jonathan Kelly appeals from a judgment of conviction,
18 following a guilty plea to one count of sex trafficking of a
19 minor and one count of conspiracy to engage in sex
20 trafficking. We assume the parties’ familiarity with the
21 underlying facts, the procedural history, and the issues
22 presented for review.
23 Kelly pled guilty with the benefit of a plea agreement
24 in which he agreed “not to file an appeal or otherwise
25 challenge . . . the conviction or sentence in the event that
26 the Court imposes a term of imprisonment of 188 months or
27 below.” The district court imposed a sentence of 188
28 months. Kelly appeals the procedure the district court used
29 in reaching this sentence. As explained below, Kelly waived
30 the right to make such an appeal.
31
32 [1] Kelly argues that the district court erred by not
33 determining the applicable Sentencing Guidelines range.
34 However, though an appeal waiver does “not relieve the
35 District Court of its responsibility to follow the
36 procedural requirements related to the imposition of a
37 sentence, the appeal waiver does preclude this Court from
38 correcting the errors alleged to have occurred below.”
39 United States v. Buissereth, 638 F.3d 114, 117 (2d Cir.
40 2011). One such error is a district court’s failure to
41 “calculate an applicable sentencing range under the
42 Sentencing Guidelines.” Id. Accordingly, Kelly, by
43 agreeing to an appeal waiver, waived his right to make such
44 an appeal.
45
46 [2] Kelly argues that the district court erred by adopting a
47 presentence investigative report (“PSR”) that was factually
2
1 inaccurate. The PSR contained an enhancement for “the use
2 of a computer or an interactive computer service to . . .
3 entice, encourage, offer, or solicit a person to engage in
4 prohibited sexual conduct with the minor,” pursuant to
5 U.S.S.G. § 2G1.3(b)(3)(B), which the government agreed was
6 inapplicable. The PSR also contained a role adjustment for
7 acting as “organizer, leader, manager, or supervisor in any
8 criminal activity,” pursuant to U.S.S.G. § 3B1.1(c), on
9 which the government took no position.
10 We are “aware of no case that has held that the mere
11 existence of inaccurate information in a presentence report,
12 rather than a district court’s reliance on such information
13 in sentencing . . . is an error sufficient to void an appeal
14 waiver.” United States v. Arevalo, 628 F.3d 93, 99 (2d Cir.
15 2010).
16 Here, the district court did not rely on the PSR. In
17 its written judgment, the court did check a box accepting
18 the PSR. But while the PSR, with the possible inaccuracies,
19 recommended a Guidelines range of 235 to 293 months, the
20 court sentenced Kelly to 188 months. In reaching this
21 sentence, the court repeatedly stated that it was looking to
22 the plea agreement. Any inaccuracies in the PSR therefore
23 did not impact Kelly’s sentence.
24
25 [3] Kelly argues that the enhancement in the plea agreement
26 for undue influence of a minor to engage in prohibited
27 sexual conduct, pursuant to U.S.S.G. § 2G1.3(b)(3)(B), is
28 not factually supported when the minor was already reduced
29 to prostitution, and that the district court erred by
30 ignoring his objection and by basing the sentence on the
31 plea agreement that contained the objectionable enhancement.
32 Regardless of whether the enhancement was supported,
33 Kelly waived the challenge. In Arevalo, this Court stated
34 that a defendant’s “waiver of his right to ‘challenge . . .
35 [his] . . . sentence’ plainly includes a waiver of his right
36 to claim errors arising out of the District Court's crafting
37 of [his] sentence.” 628 F.3d at 97 (internal citations
38 omitted) (ellipses and brackets in original). This is so
39 because “[p]lea agreements are construed according to
40 contract law principles.” United States v. Yemitan, 70 F.3d
41 746, 747 (2d Cir. 1995). Kelly agreed to waive all appeals
42 for a sentence of 188 months or below, and the court
43 sentenced Kelly to 188 months. Even if a plea agreement
44 contains a “mutual mistake,” it is enforceable. United
45 States v. Rosen, 409 F.3d 535, 548 (2d Cir. 2005).
46
3
1 Finding no merit in Kelly’s remaining arguments, we
2 hereby AFFIRM the judgment of the district court.
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5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
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