United States v. Piccarreto ( 2023 )

21-2915-cr
United States v. Piccarreto
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.
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
26th day of June, two thousand twenty-three.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
BETH ROBINSON,
MARIA ARAÚJO KAHN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 21-2915-cr
JOHN PICCARRETO, JR.,
Defendant-Appellant.
_____________________________________
For Appellee: KATHERINE A. GREGORY, Assistant United States
Attorney (Monica J. Richards, Assistant United States
Attorney, on the brief), for Trini E. Ross, United States
Attorney for the Western District of New York, Buffalo,
NY.
For Defendant-Appellant: TIMOTHY P. MURPHY, Federal Public Defender’s
Office, Buffalo, NY.
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Appeal from a judgment of the United States District Court for the Western District of New
York (Geraci, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED.
Defendant-Appellant John Piccarreto, Jr. (“Piccarreto”) appeals from the November 15,
2021, judgment of the United States District Court for the Western District of New York (Geraci,
J.), principally sentencing him to 84 months’ imprisonment and imposing a restitution order of
$19,842,613.66. Pursuant to a written plea agreement, Piccarreto pleaded guilty to one count of
conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1341 and 1349, and one count of
filing a false tax return, in violation of 26 U.S.C. § 7206(1). For this Court to reach Piccarreto’s
claims on appeal, Piccarreto must first overcome the plea agreement he signed, which includes an
appeal waiver affirming Piccarreto’s waiver of the right to appeal any component of a sentence
falling within or under the sentencing range of 121 to 151 months, and any restitution order not
exceeding $20 million. A-25. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
* * *
A defendant’s knowing and voluntary waiver of the right to appeal is enforceable. United
States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). Here, Piccarreto argues that the record
does not “clearly demonstrate” that he knowingly and voluntarily waived his right to appeal. For
the following reasons, we disagree.
Federal Rule of Criminal Procedure 11(b)(1)(N) provides that during a plea colloquy, the
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.
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R. Crim. P. 11(b)(1)(N). As we have said before, Rule 11 “is designed to assist district courts in
ensuring that a defendant’s guilty plea is knowing and voluntary.” United States v. Mercado, 349
F.3d 708, 711 (2d Cir. 2003). Because Piccarreto did not object below to any alleged Rule 11
violation, we review the plea colloquy for plain error as to any violation of its terms. See United
States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013) (holding that plain error review applies to an
unpreserved Rule 11(b)(1)(N) challenge). “To establish plain error, a defendant must
demonstrate: (1) error, (2) that is plain, and (3) that affects substantial rights. If all three
conditions are met, we will then exercise our discretion to rectify this forfeited error only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Helm, 58 F.4th 75, 84 (2d Cir. 2023) (internal quotation marks and citation omitted).
First, regarding whether the waiver of the right to appeal the sentence was knowing and
voluntary, the record clearly reflects that Piccarreto was fully apprised of the appeal waiver and
knowingly agreed to it. At the plea colloquy, the district court confirmed that Piccarreto had not
been forced, coerced, or threatened to enter the guilty plea. See A-29. The district court also
confirmed that Piccarreto had reviewed the plea agreement with counsel, and the district court
itself reviewed the terms of the plea agreement pertaining to waiver of the right to appeal a sentence
within the Guidelines range. See A-29, A-47. Further, Piccarreto confirmed that he understood
the plea agreement. See A-47 to -48. There is thus no basis on this record to conclude that
Piccarreto’s waiver of the right to appeal a sentence between or less than 121 to 151 months’
imprisonment was anything but knowing and voluntary. 1
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Nor is this conclusion undermined by the fact that the district court’s articulation of the waiver
at the plea colloquy did not follow the exact text of the plea agreement. Compare A-47 (“If, in fact, the
Court imposed a sentence in accordance with the guidelines, notwithstanding the manner in which the
Court determines the sentence, do you understand you’re waiving or giving up your right to appeal the
sentence?” (emphasis added)), with A-25 ¶ 34 (“The defendant . . . knowingly waives the right to appeal
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On the other hand, the district court arguably erred by neglecting to review the waiver of
the right to appeal the restitution order at the plea colloquy. See A-47; cf. United States v. Ready,
82 F.3d 551, 557–58 (2d Cir. 1996) (finding that waiver of right to appeal was not knowingly made
where the district court did not mention the right to appeal or explain the consequences of waiving
this right); United States v. Pagliuca, 767 F. App’x 93, 95 (2d Cir. 2019) (summary order) (“While
the district court ensured that Pagliuca understood that he was giving up his right to appeal his
conviction and sentence, the court did not specifically point out that Pagliuca could only appeal a
fine of more than $300,000. Arguably, then, the court may not have verified that Pagliuca
understood the breadth of the waiver.” (internal quotation marks, alteration, and citation omitted)).
However, any Rule 11 error was not plain because Piccarreto has not shown that it affected
his substantial rights. See United States v. Lloyd, 901 F.3d 111, 119 (2d Cir. 2018) (“In the Rule
11 context, we have interpreted the [substantial rights] prong of the plain-error test to require that
a defendant show a reasonable probability that, but for the error, he would not have entered the
plea.” (internal quotation marks and citation omitted)). Here, several parts of the record indicate
that Piccarreto understood he was waiving his right to appeal his restitution order and would still
have entered the plea. First, he signed the plea agreement, in which he agreed to waive his right
to appeal a restitution order that did not exceed $20 million. See A-25 to -26. At the plea
colloquy, the district court confirmed that Piccarreto knew he faced restitution in the amount of at
least $18,601,364 to the victims and $519,812 to the Internal Revenue Service. See A-46. The
and collaterally attack any component of a sentence imposed by the Court which falls within or is less than
the sentencing range for imprisonment, a fine and supervised release set forth . . . above, notwithstanding
the manner in which the Court determines the sentence.” (emphasis added)). The district court’s
articulation was not plainly erroneous, in that a sentence imposed “in accordance with the Guidelines”
meant, in context, one that “falls within” the Guidelines sentencing range the district court had just reviewed
with Piccarreto, and to which Piccarreto had agreed. At any rate, and contrary to Piccarreto’s claim, we
do not believe this phrasing casts doubt on his understanding of the plea proceeding.
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district court also confirmed that Piccarreto had reviewed the plea agreement with counsel and
understood it. See A-29, A-47 to -48. Finally, the district court did confirm that Piccarreto
understood he was waiving his right to appeal the sentence. See A-47. In combination, these
factors are sufficient to assure us that Piccarreto’s substantial rights were not affected, and that he
knowingly and voluntarily waived his right to appeal. Cf. Pagliuca, 767 F. App’x at 96–97.
* * *
We have considered Piccarreto’s remaining arguments and find them to be without merit.
Accordingly, the appeal is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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