United States v. Williams , 448 F. App'x 156 ( 2012 )

10-3018
United States v. Williams
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 18th day of January, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-3018
18
19 DWANDELL WILLIAMS,
20
21 Defendant-Appellant.
22
23
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25
26 FOR APPELLANT: Steven Y. Yurowitz
27 New York, NY
28
1
1 FOR APPELLEE: Monica J. Richards (Stephan J.
2 Baczynski, on the brief)
3 Assistant United States
4 Attorney, for William J. Hochul,
5 Jr., United States Attorney,
6 Western District of New York,
7 Buffalo, NY
8
9 Appeal from judgments of the United States District
10 Court for the Western District of New York (Arcara, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the district court’s judgments are
14 AFFIRMED.
15
16 Dwandell Williams appeals from judgments entered in the
17 United States District Court for the Western District of New
18 York convicting him upon a guilty plea of [a] possessing
19 with the intent to distribute cocaine base in violation of
20 21 U.S.C. § 841(a)(1) and [b] violating the terms of his
21 supervised release. He was sentenced to consecutive terms
22 of imprisonment of 210 and 12 months, respectively. We
23 assume the parties’ familiarity with the underlying facts,
24 the procedural history, and the issues presented for review.
25
26 [1] Williams argues that he was deprived of his Sixth
27 Amendment right to the effective assistance of counsel at
28 his sentencing. However, having waived his right to appeal
29 any sentence within or below the Guidelines range, he may
30 not now do an end-run around his plea agreements on the
31 ground of ineffective assistance. “Waivers of the right to
32 appeal a sentence are presumptively enforceable.” United
33 States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). So long
34 as they are knowing and voluntary, such waivers “must be
35 enforced because, if they are not, the covenant not to
36 appeal becomes meaningless and would cease to have value as
37 a bargaining chip in the hands of defendants.” United
38 States v. Granik, 386 F.3d 404, 412 (2d Cir. 2004) (internal
39 quotation marks omitted). A defendant may not “dress up” a
40 challenge to the correctness of his sentence as a Sixth
41 Amendment claim for ineffective assistance of counsel by
42 arguing the deficiency of his counsel’s performance “not at
43 the time of the plea, but at sentencing.” United States v.
44 Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (per curiam).
2
1 Here, Williams’ sentence fell within or below the Guidelines
2 ranges specified in the plea agreements, and therefore
3 triggered the appellate waiver provisions of those
4 agreements. His arguments as to the adequacy of his
5 attorney’s performance at sentencing are consequently
6 foreclosed. See id.
7
8 [2] Williams also argues that he was not advised that the
9 Guidelines recommended an upward departure on the supervised
10 release violation because his original sentence reflected a
11 downward departure. But Williams was aware that he could
12 receive a prison term of up to five years for his supervised
13 release violation. Moreover, Williams was not prejudiced by
14 his attorney’s failure to mention the impact of the downward
15 departure at his original sentencing, since he ultimately
16 received a below-Guidelines sentence. See Strickland v.
17 Washington, 466 U.S. 668, 687 (1984). Williams therefore
18 has not shown that his attorney was ineffective in entering
19 into the plea agreement.
20
21 We have considered Williams’ remaining arguments and
22 find them to be without merit. For the foregoing reasons,
23 the judgments of the district court are hereby AFFIRMED.
24
25
26
27 FOR THE COURT:
28 CATHERINE O’HAGAN WOLFE, CLERK
29
3