08-2244-cr
USA v. Morales

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders 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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the
4th day of January, two thousand and eleven.

PRESENT:

          JOHN M. WALKER, JR .,
          JOSÉ A. CABRANES,

                               Circuit Judges,

         JOHN G. KOELTL ,

                               District Judge.*

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UNITED STATES OF AMERICA ,

                     Appellee,

                     -v.-                                                                  No. 08-2244-cr

ROBERT MORALES,

                     Defendant-Appellant.



            *
              The Honorable John G. Koeltl, of the United States District Court for the Southern District of New York,
  sitting by designation.
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FOR DEFENDANT-APPELLANT:                              LAW OFFICE OF ROBERT A. CULP, Garrison, NY.

FOR APPELLEE:                                         JUSTIN ANDERSON , Assistant United States Attorney
                                                      (Preet Bharara, United States Attorney, and Jesse M.
                                                      Furman, on the brief), United States Attorney’s Office for
                                                      the Southern District of New York, New York, NY.


        Appeal from an April 28, 2008 judgment of the United States District Court for the Southern
District of New York (Leonard B. Sand, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

         On January 28, 2008, Robert Morales (“defendant” or “Morales”) pleaded guilty pursuant to a
plea agreement to one count of possession with intent to distribute 50 grams and more of cocaine base,
in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A); and one count of possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). In exchange for the
defendant’s guilty plea, the government refrained from filing other felony informations that would have
subjected Morales to a mandatory term of life imprisonment for his conviction on the count of
possession with intent to distribute.

        On April 28, 2008, the District Court sentenced Morales principally to 262 months’
imprisonment for the narcotics charge and 60 months’ imprisonment for the firearms charge, to be
served consecutively. Morales filed a timely appeal. We assume the parties’ familiarity with the
remaining factual and procedural history of the case.

                                                      (i)
        On appeal, Morales argues that his case should be remanded for resentencing because the
District Court applied the five-year mandatory minimum sentence for a weapons conviction under 18
U.S.C. § 924(c) consecutively to the ten-year mandatory minimum sentence for a narcotics conviction
under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). Morales asserts that this sentence was unlawful in light of
our decisions in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), and United States v. Williams, 558 F.3d
166 (2d Cir. 2009), which were issued after his sentence was imposed and which held that a defendant
may not be sentenced to imprisonment under 18 U.S.C. § 924(c) if he is subject to a greater mandatory
minimum for a separate offense in the same case.

        The threshold question is whether Morales knowingly and voluntarily waived his right to appeal
his sentence on the grounds of a Whitley/Williams error. We find that he did.1 Morales pleaded guilty
pursuant to a plea agreement (“the Agreement”) that provided, in relevant part:

           1
            For this reason, we need not address the apparent conflict between Whitley and Williams and the U.S. Supreme
  Court’s recent decision in Abbott v. United States, __ U.S. __, 2010 WL 4569898 (Nov. 15, 2010).
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              It is agreed (i) that the defendant will not file a direct appeal, nor litigate
              under Title 28, United States Code, Section 2255 and/or Section 2241, any
              sentence within or below the Stipulated Guidelines Range set forth above
              and (ii) that the Government will not appeal any sentence within or above
              the Stipulated Guidelines Range. It is further agreed that any sentence within
              the Stipulated Guidelines range is reasonable. This provision is binding on
              the parties even if the Court employs a Guidelines analysis different from
              that stipulated to herein.

We repeatedly have held that a defendant’s knowing and voluntary waiver of the right to appeal a
sentence is generally valid and enforceable. See, e.g., United States v. Perason, 570 F.3d 480, 485 (2d Cir.
2009); United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005) (“Morgan II”). This rule “recognizes that
plea agreements can have extremely valuable benefits to both sides—most notably, the defendant gains
reasonable certainty as to the extent of his liability and punishment, and the Government achieves a
conviction without the expense and effort of proving the charges at trial beyond a reasonable doubt.”
United States v. Morgan, 386 F.3d 376, 380 (2d Cir. 2004) (“Morgan I”) (internal quotation marks omitted).

         Here, the record shows that the District Court specifically called Morales’ attention to the
appellate waiver during the plea proceeding and verified that he understood that “pursuant to the plea
agreement,” he could not file “a direct appeal nor litigate any sentence within or below the [stipulated]
guideline range.” This is sufficient to establish the knowing and voluntary nature of Morales’
decision to sign the Agreement and to forego appeal under the specified circumstances. See United States
v. Ready, 82 F.3d 551, 557 (2d Cir. 1996).

        Morales asserts, however, that he only waived his right to challenge “the Stipulated Guidelines
Range,” not his right to challenge the application of a statutory mandatory minimum. We are
unpersuaded by the defendant’s argument. The Agreement precluded Morales from challenging a
sentence within or below the Stipulated Guidelines Range. The sentence was indisputably within that
range. The waiver was not limited to any particular type of argument but to the sentence that was
imposed. Moreover, the Agreement’s Stipulated Guidelines Range of 322–387 months relied in part
upon the application of a 60-month mandatory minimum imposed under § 924(c). Morales’ challenge
to the mandatory minimum is necessarily a challenge to a sentence within the Stipulated Guidelines
Range. Accordingly, we hold that Morales waived this claim.

                                                       (ii)
        Morales also argues that we should remand the case for resentencing in light of the Fair
Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372 (2010), which lowered the
crack-powder ratios in the Guidelines and raised the quantities necessary to trigger mandatory minimum
sentences. We decline to remand for resentencing because, again, Morales’ appellate waiver proscribes
his right to appeal on this basis (as he effectively concedes in his letter to the Court of November 22,
2010). Legal developments favorable to the defendant do not constitute grounds for finding an
appellate waiver unenforceable merely because they occurred subsequent to the plea agreement. See
United States v. Lee, 523 F.3d 104, 107 (2d Cir. 2008); United States v. Oladimeji, 463 F.3d 152, 155-56 (2d

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Cir. 2006) (“[T]he possibility of a favorable change in the law after a plea is simply one of the risks that
accompanies pleas and plea agreements.”) (internal quotation marks omitted).

                                               CONCLUSION
        We have considered each of the defendant’s arguments in turn and find them to be without
merit. The defendant’s appeal is DISMISSED insofar as it asserts claims that fall within the scope of
his appellate waiver; in all other respects, the judgment of the District Court is AFFIRMED.



                                                FOR THE COURT,

                                                Catherine O’Hagan Wolfe, Clerk of Court




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