United States v. Markou

11-94
United States v. Markou
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 8th day of March, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 11-94
17
18 VICTOR L. LARSEN, JR., JONATHAN
19 DAVIDSON, ANGEL CORDERO, JIMMY
20 ALBRIGHT, AKA SHAWN ALBRIGHT, AKA
21 MARKEY TONE, THEO STRATUS, AKA
22 THEOLOGOS STRATAS,
23 Defendants,
24
25 JOHN MARKOU, JR.,
26 Defendant-Appellant.
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1
1
2 FOR APPELLANT: Devin McLaughlin, Langrock
3 Sperry & Wool, LLP, Middlebury,
4 Vt.
56 FOR APPELLEES: Winston M. Paes, Susan Corkery
7 (on the brief), Assistant United
8 States Attorneys, for Loretta E.
9 Lynch, United States Attorney
10 for the Eastern District of New
11 York, Brooklyn, N.Y.
12
13 Appeal from a judgment of the United States District
14 Court for the Eastern District of New York (Dearie, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the appeal is DISMISSED.
18
19
20 John Markou appeals from a judgment of conviction of
21 one count of Hobbs Act robbery, see 18 U.S.C. § 1951(a), and
22 one count of use of a firearm in furtherance of that
23 robbery, see 18 U.S.C. § 924(c)(1)(A)(ii). In his plea
24 agreement, Markou waived the right to appeal his conviction
25 or sentence unless the sentence exceeded 365 months. The
26 court sentenced him to 204 months’ imprisonment. We assume
27 the parties’ familiarity with the underlying facts, the
28 procedural history, and the issues presented for review.
29
30 During the plea colloquy, the court incorrectly recited
31 that Markou waived his right to appeal in the event that it
32 imposed a term of 365 months or more. However,
33 “invalidation of a waiver of appeal [is not required] in
34 every case where the sentencing court’s explanation of the
35 waiver is not completely correct.” United States v. Chen,
36 127 F.3d 286, 289 (2d Cir. 1997). Invalidation is
37 unnecessary when “‘the record clearly demonstrates that the
38 waiver was both knowing (in the sense that the defendant
39 fully understood the potential consequences of his waiver)
40 and voluntary.’” Id. at 289-90 (quoting United States v.
41 Ready, 82 F.3d 551, 557 (2d Cir. 1996) (internal quotation
42 marks omitted)); see also United States v. Arevalo, 628 F.3d
43 93, 98 (2d Cir. 2010) (“[W]e find waivers unenforceable only
44 in very limited situations, such as when the waiver was not
45 made knowingly, voluntarily, and competently . . . .”)
46 (internal quotation marks omitted). We infer that Markou
47 understood the appeals waiver provision based on his
2
1 statement that he had attended some college; his statements
2 that he read the plea agreement carefully, understood it,
3 and discussed it with counsel; and the fact that the court
4 advised him of his right to appeal a sentence above 365
5 months, which Markou said he understood. Cf. Chen, 127 F.3d
6 at 290 (“In the absence of some affirmative evidence from
7 which appellant’s knowledge and understanding of the waiver
8 provision could reasonably be inferred . . . the magistrate
9 judge’s error rendered the waiver ineffective.”).
10
11
12 For the foregoing reasons, we conclude the appeal
13 waiver is valid. Accordingly, the appeal is DISMISSED.
14
15
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
19
3