United States v. Otero

SUMMARY ORDER

John Otero (“Otero”) appeals from a judgment of sentence entered on May 26, 2004, in the United States District Court for the Southern District of New York (Pauley, J.), following a plea of guilty. Otero claims that the district court violated his Sixth Amendment rights by enhancing his sentence based on facts that were not alleged in the indictment or admitted by him during his plea allocution. He also contends that the district court committed clear error in fading to find that the loss determined under U.S.S.G. § 2B1.1 significantly overstated the seriousness of his offense. United States v. Dominguez Benitez, 542 U.S. 74, —, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). Otero argues in the alternative that his sentence should be remanded based on United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).

Because Otero waived his right to appeal any sentence in the stipulated Guidelines range of 18 to 24 months [A 34-35] and the district court imposed a sentence of 24 months, we hold that a remand based on Booker is not warranted. See United States v. Morgan, 406 F.3d 135, 137-38 (2d Cir .2005).

For the foregoing reasons, the appeal of the judgment of the district court is DISMISSED.