United States v. Almonte , 586 F. App'x 66 ( 2014 )

13-2587
United States v. Almonte
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of December, two thousand fourteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 REENA RAGGI,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-2587
16
17 ANTONIO ALMONTE,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: RYAN THOMAS TRUSKOSKI, Ryan
22 Thomas Truskoski, P.A.,
23 Harwinton, Connecticut.
24
25 FOR APPELLEE: JOSEPH J. KARASZEWSKI, for
26 William J. Hochul, Jr., United
27 States Attorney for the Western
1
1 District of New York, Buffalo,
2 New York.
3
4 Appeal from a judgment of the United States District
5 Court for the Western District of New York (Arcara, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the appeal be DISMISSED.
9
10 Defendant-appellant Antonio Almonte appeals from the
11 judgment of the United States District Court for the Western
12 District of New York (Arcara, J.), sentencing him after a
13 guilty plea principally to 70 months’ imprisonment. On
14 appeal, Almonte argues that the district court erred by
15 failing to properly consider: (1) the advisory U.S.
16 Sentencing Guidelines (“Guidelines”) range contained in his
17 plea agreement, and (2) the factors set forth in 18 U.S.C. §
18 3553(a). We assume the parties’ familiarity with the
19 underlying facts, the procedural history, and the issues
20 presented for review.
21
22 Almonte has waived his right to appeal his sentence,
23 which falls within the range of sentences subject to the
24 plea agreement’s appeal waiver. “Waivers of the right to
25 appeal a sentence are presumptively enforceable.” United
26 States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (citation
27 and internal quotation marks omitted). Defendants may waive
28 the right to appeal even “meaningful errors” in sentencing,
29 and such waivers are unenforceable only in “very
30 circumscribed” circumstances. Id. at 147 (citation and
31 internal quotation marks omitted). We have held waivers of
32 appeal to be unenforceable
33
34 when [1] the waiver was not made knowingly,
35 voluntarily, and competently, [2] when the
36 sentence was imposed based on constitutionally
37 impermissible factors, such as ethnic, racial or
38 other prohibited biases, [3] when the government
39 breached the plea agreement, or [4] when the
40 sentencing court failed to enunciate any rationale
41 for the defendant’s sentence, thus amounting to an
42 abdication of judicial responsibility subject to
43 mandamus.
44
45 United States v. Buissereth, 638 F.3d 114, 118 (2d Cir.
46 2011) (citation omitted).
47
2
1 None of these circumstances is presented here. The
2 record is clear that: (1) Almonte understood and knowingly
3 agreed to be bound by the waiver of appeal; (2) the district
4 court did not use constitutionally impermissible factors;
5 (3) the government complied with the plea agreement by
6 advocating for the Guidelines range originally agreed upon
7 by the parties; and (4) the district court articulated an
8 appropriate rationale for its sentence and made specific
9 reference to the sentencing factors in 18 U.S.C. § 3553(a)
10 and the government’s § 5K1.1 letter.
11
12 The record does not support Almonte’s contention that
13 the district court focused on the waiver of appeal to the
14 exclusion of appropriate sentencing considerations. Cf.
15 United States v. Woltmann, 610 F.3d 37, 42 (2d Cir. 2010)
16 (“The district court misconstrued the [plea agreement] as an
17 enforceable concession by [the defendant] that any sentence
18 at or below 27 months was appropriate--without regard to any
19 5K1.1 letter and the § 3553(a) factors.”). Nor did the
20 district court defeat the parties’ reasonable expectations
21 by declining to adopt the criminal history category and
22 Guidelines range agreed to by the parties. Cf. id. at 40-
23 42. The plea agreement expressly contemplated that the
24 district court could sentence based on a criminal history
25 category and/or a Guidelines range different from those
26 contained in the agreement, and provided that any such
27 deviation would not permit Almonte to withdraw his plea. “A
28 mutual mistake concerning the proper Guidelines range is an
29 insufficient basis to void a plea agreement” if the
30 possibility of such mistake is addressed by the agreement.
31 Riggi, 649 F.3d at 149; see also United States v. Rosen, 409
32 F.3d 535, 548-49 (2d Cir. 2005). Likewise, a mutual mistake
33 about the Guidelines range does not render unenforceable a
34 waiver of appeal in a plea agreement where, as here, the
35 parties “expressly took into account the possibility that
36 [their] understandings might not prevail,” Rosen, 409 F.3d
37 at 548.
38
39 Relying on United States v. Buchanan, 59 F.3d 914, 917
40 (9th Cir. 1995), Almonte argues that he is not bound by the
41 appeal waiver because, after sentencing, the district court
42 stated (erroneously) that he had not waived his right to
43 appeal. Buchanan stands for the rule that “a district
44 court’s clear statement that a defendant has the right to
45 appeal renders unenforceable the defendant’s prior waiver of
46 this right in a plea agreement.” United States v.
47 Arias-Espinosa, 704 F.3d 616, 618 (9th Cir. 2012). This
3
1 rule was rejected by this Circuit in United States v.
2 Fisher, which held that “an otherwise enforceable waiver of
3 appellate rights is not rendered ineffective by a district
4 judge’s post-sentencing advice suggesting, or even stating,
5 that the defendant may appeal.” 232 F.3d 301, 304 (2d Cir.
6 2000). The district court’s post-sentencing comment did not
7 impair the enforceability of the waiver.
8
9 For the foregoing reasons, and finding no merit in
10 Almonte’s other arguments, we hereby DISMISS the appeal.
11
12 FOR THE COURT:
13 CATHERINE O’HAGAN WOLFE, CLERK
14
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