United States v. Bobbitt

14-2272
United States v. Bobbitt
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 30th day of April, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROSEMARY S. POOLER,
8 PETER W. HALL,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 14-2272
16
17 BRANDON BOBBITT,
18 Appellant.
19 - - - - - - - - - - - - - - - X
20
21 FOR APPELLANT: Ryan Thomas Truskoski,
22 Harwinton, Connecticut.
23
24 FOR APPELLEE: Stephan J. Baczynski, for
25 William J. Hochul, Jr., United
26 States Attorney for the Western
27 District of New York, Buffalo,
28 New York.
29
1 Appeal from a judgment of the United States District
2 Court for the Western District of New York (Arcara, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the appeal be DISMISSED.
6
7 Brandon Bobbitt appeals from the judgment of the United
8 States District Court for the Western District of New York
9 (Arcara, J.), sentencing him after his guilty plea
10 principally to 210 months’ imprisonment. On appeal, Bobbitt
11 challenges the procedural reasonableness of his sentence.
12 We assume the parties’ familiarity with the underlying
13 facts, the procedural history, and the issues presented for
14 review.
15
16 Bobbitt waived his right to appeal a sentence that
17 falls within the range of sentences specified in the plea
18 agreement. “Waivers of the right to appeal a sentence are
19 presumptively enforceable.” United States v. Riggi, 649
20 F.3d 143, 147 (2d Cir. 2011) (internal quotation marks
21 omitted). Bobbitt does not contend that his appeal waiver
22 was not made knowingly, that his sentence was based on
23 constitutionally impermissible factors, or that the
24 government has breached its agreement. See United States v.
25 Buissereth, 638 F.3d 114, 117-18 (2d Cir. 2011) (setting out
26 limits on enforceability of appeal waiver but finding appeal
27 waiver “preclude[s] this Court from correcting the
28 [procedural] errors alleged to have occurred below”).
29
30 Bobbitt contends that the district court focused on the
31 appeal waiver to the exclusion of appropriate sentencing
32 considerations under 18 U.S.C. § 3553(a). Cf. United States
33 v. Woltman, 610 F.3d 37, 42 (2d Cir. 2010) (finding district
34 court “refused to consider the 5K1.1 letter and the
35 § 3553(a) factors on the ground that the appeal waiver and
36 the sentencing range in the Agreement obviated anything
37 else.”). The record does not support the contention that
38 the court failed to consider the relevant circumstances.
39 Nor did the district court defeat the parties’ reasonable
40 expectations: Bobbitt was sentenced to a term of
41 incarceration at the high-end of the range contemplated in
42 his plea agreement. Cf. United States v. Borrego, 388 F.3d
43 66, 69 (2d Cir. 2004) (“[D]isputes about applicable
44 guidelines need not be resolved where the sentence falls
45 within either of two arguably applicable guideline ranges
46 and the same sentence would have been imposed under either
47 guideline range.” (internal quotation marks omitted)).
2
1 For the foregoing reasons, and finding no merit in
2 Bobbitt’s other arguments, we hereby DISMISS the appeal.
3
4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, CLERK
6
3