United States v. Buissereth , 638 F.3d 114 ( 2011 )

09-5358-cr
United States v. Buissereth
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2010
(Argued: February 17, 2011 Decided: March 15, 2011)
Docket No. 09-5358-cr
UNITED STATES OF AMERICA,
Appellee,
v.
PIERRE BUISSERETH,
Defendant-Appellant.
Before: CABRANES and CHIN, Circuit Judges, and CROTTY, District Judge.*
Pierre Buissereth appeals from a November 9, 2009 judgment of conviction entered in the
United States District Court for the Eastern District of New York (Sandra J. Feuerstein, Judge).
Buissereth was sentenced principally to 100 months of imprisonment after pleading guilty to one count
of possession with intent to distribute cocaine and five grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B). We hold that, notwithstanding errors by the District Court during
Buissereth’s sentencing proceeding, his appeal is foreclosed by a valid and enforceable appeal waiver in
the written plea agreement entered into by Buissereth. Accordingly, the appeal is DISMISSED.
MARSHALL A. MINTZ (Laura A. Oppenheim, on the brief), Mintz &
Oppenheim LLP, New York, NY, for Defendant-Appellant.
WILLIAM CAMPOS, Assistant United States Attorney (Loretta E. Lynch,
United States Attorney, on the brief, and Susan Corkery, Assistant
United States Attorney, of counsel), Office of the United States
Attorney for the Eastern District of New York, Brooklyn, NY,
for Appellee.
*
The Honorable Paul A. Crotty, of the United States District Court for the Southern District of New York,
sitting by designation.
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JOSÉ A. CABRANES, Circuit Judge:
Defendant-appellant Pierre Buissereth appeals from a November 9, 2009 judgment of
conviction entered by the United States District Court for the Eastern District of New York (Sandra J.
Feuerstein, Judge), sentencing him principally to 100 months’ imprisonment. Buissereth contends that
his sentence is procedurally unreasonable in light of the District Court’s failure to, among other things,
(1) rule on Buissereth’s various objections to the Presentence Investigation Report (“PSR”); (2)
calculate a sentencing range under the Sentencing Guidelines; and (3) consider the relevant factors set
forth in 18 U.S.C. § 3553(a). The government argues that because Buissereth knowingly and voluntarily
signed a valid and enforceable appeal waiver as part of his written plea agreement, he has waived his
right to appeal. We agree, and therefore dismiss the appeal.
BACKGROUND
Pursuant to a written plea agreement dated March 17, 2009, Buissereth pleaded guilty to one
count of possession with intent to distribute cocaine and five grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) 841(b)(1)(B). The plea agreement calculated an anticipated Guidelines
range of 100 to 125 months based on Buissereth’s projected offense level and Criminal History
Category. The plea agreement also contained an appeal-waiver provision, under which Buissereth
agreed “not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or
any other provision, the conviction or sentence in the event that the Court imposes a term of
imprisonment of 137 months or below.” That is, Buissereth agreed not to appeal his sentence if the
District Court sentenced him to 137 months’ imprisonment or less. The District Court sentenced
Buissereth to 100 months’ imprisonment—the lowest possible sentence within the anticipated
Guidelines range and well within the sentencing range contemplated by the appeal waiver.
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At Buissereth’s sentencing proceeding, the District Court began by addressing an issue that had
recently surfaced with regard to Buissereth’s legal counsel. After Buissereth’s plea agreement had been
executed, but before the sentencing hearing, one of Buissereth’s attorneys (not the lead attorney)
applied for a job in the United States Attorney’s Office for the Eastern District of New York—the very
office prosecuting Buissereth in this case. The District Court ascertained that Buissereth understood
that this potential conflict of interest could have negatively affected his attorney’s performance at
sentencing. The District Court then verified that Buissereth had been fully informed by his attorneys
about this matter and, in response to the District Court’s inquiries, Buissereth confirmed that he
continued to have “full faith” in the representation he was receiving.
The District Court then shifted its attention to Buissereth’s sentence. Following presentations
by counsel and Buissereth’s allocution, the District Court, in relevant part, pronounced and explained
its sentence as follows: “Taking into account everything that was said and the records in this case and
of course all of [Buissereth’s counsel’s] eloquent arguments, the sentence will be as follows: 100 months
custody . . . .” Subsequently, in its written judgment following the sentencing hearing, the District
Court expressly adopted the findings of the PSR and identified an applicable Guidelines range
consistent with that anticipated, if not stipulated, by the government and Buissereth in the plea
agreement.
DISCUSSION
On appeal, Buissereth asserts that the appeal-waiver provision is unenforceable because the
District Court failed to secure a valid waiver of his Sixth Amendment right to be represented by
“conflict-free” counsel. It is well established that “whenever the possibility arises that a counsel’s ability
to represent a particular defendant has been tainted by a conflict of interest,” Williams v. Meachum, 948
F.2d 863, 867 (2d Cir. 1991), trial courts should:
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advise the defendant of his right to . . . conflict-free representation,
instruct the defendant as to problems inherent in being represented by an
attorney with divided loyalties, allow the defendant to confer with his
chosen counsel, encourage the defendant to seek advice from
independent counsel, and allow a reasonable time for the defendant to
make his decision.
United States v. Curcio, 680 F.2d 881, 890 (2d Cir. 1982); see also United States v. Iorizzo, 786 F.2d 52, 59 (2d
Cir. 1986). In evaluating a district court’s fidelity to this guidance, however, “we are more concerned
with whether the defendant appreciated his predicament and made a properly informed choice than we
are with whether the trial judge recited any particular litany of questions.” United States v. Jenkins, 943
F.2d 167, 176 (2d Cir. 1991).
Here, the record reveals that the District Court properly ensured that Buissereth was fully
informed of the potential conflict of interest involving one of his attorneys and that Buissereth’s
subsequent waiver of this issue was both “knowing” and “intelligent.” Williams, 948 F.2d at 867. Like
the defendant in Jenkins, “[i]t is abundantly clear from [Buissereth’s] responses to Judge [Feuerstein’s]
questions that [Buissereth] completely understood the potential risks arising from [his counsel’s]
application to the U.S. Attorney’s Office.” Jenkins, 943 F.2d at 176. Accordingly, we reject Buissereth’s
argument that the appeal-waiver provision is unenforceable because of counsel’s purported conflict of
interest.
Buissereth also argues that the appeal-waiver provision is unenforceable because the sentencing
court abdicated its “judicial responsibility” by failing to make rulings and findings at his sentencing
hearing. See United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). Although this argument fails,
we cannot help but observe that Buissereth’s sentencing hearing left much to be desired. Among other
things, the District Court failed to (1) rule on the numerous filed objections to the PSR; (2) rule on the
requests for downward departures and a variance; (3) adopt the findings of the PSR; (4) mention, much
less articulate its consideration of, the relevant factors set forth in 18 U.S.C. § 3553(a); or (5) calculate
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an applicable sentencing range under the Sentencing Guidelines. In its written judgment following the
sentencing hearing, the District Court did expressly adopt the findings of the PSR and identify the
applicable sentencing range. While this was helpful, the District Court still did not do all that it should
have. Where, as here, the Guidelines range exceeds 24 months, the sentencing court has a statutory
obligation “at the time of sentencing, [to] state in open court the reasons for its imposition of the
particular sentence.” 18 U.S.C. § 3553(c). Moreover, while adopting the findings of the PSR is
ordinarily sufficient to satisfy § 3553(c), the findings must be adopted in “open court.” United States v.
Molina, 356 F.3d 269, 277 (2d Cir. 2004).
While Buissereth’s appeal waiver did not relieve the District Court of its responsibility to follow
the procedural requirements related to the imposition of a sentence, the appeal waiver does preclude
this Court from correcting the errors alleged to have occurred below.1 See United States v. Arevalo, 628
F.3d 93, 97 (2d Cir. 2010) (holding that the district court’s failure to make findings regarding disputed
portions of the PSR did not render the appeal waiver unenforceable); United States v. Granik, 386 F.3d
404, 412 (2d Cir. 2004) (“Knowing and voluntary appellate waivers included in plea agreements must be
enforced because, if they are not, the covenant not to appeal becomes meaningless and would cease to
have value as a bargaining chip in the hands of defendants.” (quotation marks omitted)); United States v.
Yemitan, 70 F.3d 746, 747-48 (2d Cir. 1995) (upholding plea waiver where the Guidelines range
exceeded 24 months and the sentencing court failed to state reasons for imposing sentence as required
by § 3553(c)).
An appeal waiver, hovever, does have some limits. As we have held:
[A] defendant may have a valid claim that the waiver of appellate rights is unenforceable . . .
when [1] the waiver was not made knowingly, voluntarily, and competently, [2] when the
1
In relevant part, the appeal waiver contained in the plea agreement of March 17, 2009, states: “[Buissereth]
agrees not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the
conviction or sentence in the event that the Court imposes a term of imprisonment of 137 months or below. This
waiver is binding without regard to the sentencing analysis used by the Court.”
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sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or
other prohibited biases, [3] when the government breached the plea agreement, or [4] when the
sentencing court failed to enunciate any rationale for the defendant’s sentence, thus amounting
to an abdication of judicial responsibility subject to mandamus.”
Gomez-Perez, 215 F.3d at 319 (quotation marks and citations omitted).
Indeed, because “[p]lea agreements are subject to the public policy constraints that bear upon
the enforcement of other kinds of contracts,” we have recognized that “a defendant who waives his
right to appeal does not subject himself to being sentenced entirely at the whim of the district court.”
Yemitan, 70 F. 3d at 748 (quotation marks omitted). “At some point . . . an arbitrary practice of
sentencing without [proffered] reasons would amount to an abdication of judicial responsibility subject
to mandamus,” and the appeal waiver will not be enforced. Id. This case, however, does not present
such an extraordinary circumstance. Although the District Court should have made explicit findings
and rulings and explained its sentence in open court, it is apparent from the transcript of the sentencing
hearing that the District Court gave due consideration to Buissereth’s sentencing arguments. Indeed,
the sentence of 100 months’ imprisonment was reasonably foreseeable at the time of Buissereth’s plea
and undoubtedly taken into account by Buissereth and his counsel in entering the plea agreement.
Thus, the sentence imposed surely was not “fundamentally unfair,” Gomez-Perez, 215 F.3d at 320.
CONCLUSION
We have considered all of Buissereth’s arguments and find them to be without merit.
Buissereth’s appeal is hereby DISMISSED.
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