United States v. Lisi ( 2020 )

17‐3158
United States v. Lisi
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
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 24th day of March, two thousand twenty.
PRESENT:
PIERRE N. LEVAL,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 17‐3158
KATERINA ARVANITAKIS, PAUL
KATSAROS, AKA POLIZIOS KATSAROS,
Defendants,
BRANDON LISI,
Defendant‐Appellant.
_____________________________________
Appearing for Defendant‐Appellant: Brandon Lisi, pro se, MDC Brooklyn,
NY.
Appearing for Appellee: Noah Solowiejczyk, Assistant United
States Attorney, for Geoffrey S.
Berman, United States Attorney for
the Southern District of New York,
New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Failla, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Brandon Lisi, a former New York attorney proceeding pro se, was indicted
in July 2015 on three criminal counts stemming from Lisi and his co‐defendant’s
conspiracy to steal client funds. The government charged Lisi with conspiracy to
commit wire fraud, conspiracy to commit bankruptcy fraud, and conspiracy to
launder money. On April 3, 2017, pursuant to a plea agreement, Lisi pled guilty
to the charge of conspiracy to commit wire fraud. The district court entered
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judgment of conviction on September 21, 2017 and sentenced Lisi to 38 months’
imprisonment. Lisi appeals, challenging, inter alia, the plea agreement and his
sentence. 1 We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues on appeal.
In his counseled brief, Lisi raises two arguments. First, he asserts that his
sentence violates the parsimony clause of the federal sentencing statute, 18 U.S.C.
§ 3553(a), because the sentencing court did not mention parsimony during his
sentencing, thereby making the sentence procedurally unreasonable. Second,
Lisi contends that his attorney at sentencing was ineffective. We take these
arguments in turn.
Lisi’s challenges to his sentence, including his parsimony clause argument,
are barred by the appellate waiver contained in his plea agreement. As an initial
matter, we conclude that the appellate waiver in Lisi’s April 3, 2017 plea
agreement with the government is a valid, enforceable waiver.
In addition to the requirement that a plea agreement be made voluntarily
and intelligently, see Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005) (citing
1 We note that Lisi is proceeding pro se after having gone through four court‐appointed
attorneys. Additionally, after Lisi’s fourth counsel withdrew, a three‐judge panel
denied Lisi’s motions for appointment of counsel and appointment of standby counsel.
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Brady v. United States, 397 U.S. 742, 748 (1970)), with respect to an appellate waiver,
a district court must inform the defendant of, and determine that the defendant
understands, “the terms of any plea‐agreement provision waiving the right to
appeal or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N).
Generally, “[w]aivers of the right to appeal a sentence are presumptively
enforceable.” United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010); accord United
States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017). “[E]xceptions to the presumption
of the enforceability of a waiver . . . occupy a very circumscribed area of our
jurisprudence.” United States v. Gomez‐Perez, 215 F.3d 315, 319 (2d Cir. 2000). “In
particular, we have in prior cases articulated four grounds on which an appeal
waiver may be deemed unenforceable: (1) where the ‘waiver was not made
knowingly, voluntarily, and competently;’ (2) where the sentence was ‘based on
constitutionally impermissible factors, such as ethnic, racial or other prohibited
biases;’ (3) where the government breached the agreement containing the waiver;
and (4) where the district court ‘failed to enunciate any rationale for the
defendant’s sentence.’” Burden, 860 F.3d at 51 (quoting Gomez‐Perez, 215 F.3d at
319).
None of these exceptions applies here. First, Lisi, who was under oath
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during the plea proceedings, knowingly, voluntarily, and competently waived his
right to appeal. The district court found explicitly that Lisi was “fully competent
to enter a knowing and informed plea of guilty” and that he was “knowingly and
voluntarily pleading guilty.” Moreover, the court specifically directed Lisi’s
attention to the waiver provision of the plea agreement and confirmed that Lisi
understood that he was waiving his right to appeal or otherwise challenge his
sentence if the sentence was 63 months or less and that the waiver would apply
whether or not the court ordered the term of imprisonment to run consecutively
to or concurrently with Lisi’s undischarged term of imprisonment stemming from
prior and separate criminal proceedings. See United States v. DeJesus, 219 F.3d 117,
121 (2d Cir. 2000) (concluding that the knowing and voluntary nature of an
appellate waiver can be established by demonstrating that, during the plea
hearing, the defendant’s attention was drawn to the waiver provision in the plea
agreement).
Second, Lisi’s sentence was not “based on constitutionally impermissible
factors, such as ethnic, racial or other prohibited biases,” and Lisi does not argue
this on appeal. Gomez‐Perez, 215 F.3d at 319. Third, contrary to Lisi’s contention,
the government did not breach the plea agreement containing the appellate
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waiver.
Finally, with regard to the sentence imposed, the district court thoroughly
articulated its rationale for Lisi’s sentence. The court provided a detailed analysis
of the relevant Section 3553(a) sentencing factors and explained how it weighed
mitigating and aggravating factors as it carefully crafted the 38‐month sentence.
See 18 U.S.C. § 3553. There is no basis to conclude that the court “failed to
enunciate any rationale” for Lisi’s sentence. Gomez‐Perez, 215 F.3d at 319.
Because the plea agreement and the appellate waiver contained therein are
both valid and enforceable, Lisi cannot now claim that his sentence violates the
parsimony clause. See United States v. Salcido‐Contreras, 990 F.2d 51, 53 (2d Cir.
1993) (“In no circumstance . . . may a defendant, who has secured the benefits of a
plea agreement and knowingly and voluntarily waived the right to appeal a
certain sentence, then appeal the merits of a sentence conforming to the
agreement.”); United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997) (“This rule [that a
defendant cannot appeal his sentence after having knowingly and voluntarily
waived the right to appeal that sentence] has been held to bar even those appeals
which claim that the sentencing court illegally sentenced the defendant under the
Guidelines and relevant statutes, so long as the court nevertheless imposed a
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sentence within the range outlined in the agreement.” (citing United States v.
Yemitan, 70 F.3d 746, 748 (2d Cir. 1995)); see also United States v. Ruiz, 272 F. App’x
19, 20 (2d Cir. 2008) (“We need not decide whether Appellant’s sentence violated
the parsimony clause . . . because we hold that the appeal waiver in Appellant’s
plea agreement is enforceable.”)
Turning to Lisi’s assertion that his counsel at sentencing was ineffective in
this case, we do not consider this claim at this time because it was not raised below,
and the appellate record is therefore insufficient. If he so chooses, Lisi may raise
the issue in a petition under 28 U.S.C. § 2255. See Massaro v. United States, 538 U.S.
500, 504 (2003) (“In light of the way our system has developed, in most cases a
motion brought under § 2255 is preferable to direct appeal for deciding claims of
ineffective assistance.”); United States v. Khedr, 343 F.3d 96, 99 (2d Cir. 2003)
(explaining that we have “expressed a baseline aversion to resolving
ineffectiveness claims on direct review” (internal quotation marks omitted)).
In addition to the arguments made in Lisi’s counseled brief, Lisi raises
several arguments in his Pro Se Supplemental Brief. These supplemental
arguments are somewhat difficult to comprehend, but we read them as follows:
Lisi asserts that his plea agreement was not entered voluntarily or knowingly, that
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the district court erred in sentencing him, and that venue in the Southern District
of New York was improper. For the reasons that follow, we are unpersuaded.
As we have already acknowledged above, a guilty plea must be entered
voluntarily and intelligently. Wilson, 413 F.3d at 199. Rule 11 of the Federal
Rules of Criminal Procedure “sets forth certain requirements of the district court’s
plea allocution to assist the court with making the constitutionally required
determination that a defendant’s guilty plea is truly voluntary.” United States v.
Youngs, 687 F.3d 56, 59 (2d Cir. 2012) (internal quotation marks omitted).
Generally, “Rule 11 violations that are not objected to at the time of the plea are
subject to plain error review.” Id.; see also Fed. R. Crim. P. 52(b).
Lisi’s assorted arguments that his guilty plea was not voluntary or knowing
are unavailing. During the plea proceedings, Lisi stated under oath that he had
read the plea agreement, understood it, and had an opportunity to discuss it with
his attorney before signing it. The district court found Lisi fully competent to
enter a guilty plea and explicitly found that Lisi was “knowingly and voluntarily
pleading guilty.” Moreover, the court thoroughly informed Lisi of the trial rights
that he would waive by pleading guilty and the other consequences of his plea.
In short, the district court abided by Rule 11’s requirements, and it cannot be said
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that the court clearly erred. See Youngs, 687 F.3d at 59.
Lisi contends that the government impermissibly induced him to plead
guilty to a prior felony conviction and that somehow this alleged inducement
nullifies the plea agreement at issue in this case.2 Lisi raised this argument in a
prior appeal, and we rejected it. See United States v. Lisi, 706 F. App’x 48 (2d Cir.
2017) (summary order). The argument is completely inapposite to his challenge
to the subsequent valid plea agreement before us in this appeal. Lisi further
asserts that the attorney that represented him at the plea proceedings in his prior
2 On October 5, 2009, Lisi and others were indicted in the Southern District of New York
for conspiring to commit wire fraud and bank fraud (the “October Indictment”). The
October Indictment alleged that from 2005 through 2007, Lisi and his co‐conspirators
engaged in an illegal scheme to defraud various lending institutions. In December 2009,
Lisi was again indicted in the Southern District of New York for conspiring to commit
bank and wire fraud, as well as the substantive offenses of wire and bank fraud, in
connection with a mortgage fraud scheme (the “December Indictment”). In the
December Indictment, the government alleged that Lisi had held himself out as a New
York attorney when in fact he was not yet admitted to practice law in the state, that he
fraudulently obtained home mortgage loans under fraudulent pretenses, and that he had
misappropriated the loan proceeds for his own use. In April 2013, pursuant to a plea
agreement, Lisi pled guilty to one count of conspiracy to commit bank and wire fraud
from the October Indictment and one count of conspiracy to commit bank and wire fraud
from the December Indictment. While reviewing the terms of the 2013 plea agreement,
the government informed the court and Lisi that any post‐arrest criminal conduct that
Lisi had engaged in (the basis for his conviction in this case) was not a part of the 2013
plea agreement; Lisi agreed to the terms of this agreement. The district court (Buchwald,
J.) later sentenced Lisi to 78 months’ imprisonment, which was within the Guidelines
range. Lisi appealed, and this Court affirmed. See United States v. Lisi, 706 F. App’x 48
(2d Cir. 2017) (summary order).
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felony conviction had a conflict of interest and that this alleged conflict of interest
has rendered his guilty plea in this case involuntary and unknowing. This,
however, is another recycled argument, one that we already rejected in denying
Lisi’s prior appeal, see id. at 48–49, and one that has no bearing on the validity of
Lisi’s plea agreement in this case.
Having already concluded that the appellate waiver in the plea agreement
is enforceable, we also conclude that Lisi’s supplemental assertions concerning his
sentence are waived. See Salcido‐Contreras, 990 F.2d at 53; Rosa, 123 F.3d at 97.
Lisi has also waived any argument that venue was improper. See United States v.
Calderon, 243 F.3d 587, 590 (2d Cir. 2001) (holding that venue is not jurisdictional
and may be waived in a criminal case by entering into a valid plea agreement).
We have considered Lisi’s remaining arguments, including those in his
recently filed Rule 28(j) letter, and find them to be without merit. See Fed. R. App.
P. 28(j). Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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