13-1555-cr
United States v. Nicholson

                               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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
20th day of May, two thousand fourteen.

Present:    JOHN M. WALKER, JR.,
            ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                             -v-                                              13-1555-cr

JAMES NICHOLSON,

                        Defendant-Appellant.
_____________________________________________________


Appearing for Appellant:           Donald Mark Thompson, Easton Thompson Kasperek Shiffrin
                                   LLP, Rochester, N.Y.

Appearing for Appellee:            Joseph J. Karaszewski, Assistant United States Attorney, (William
                                   J. Hochul, United States Attorney for the Western District of New
                                   York, on the brief), Buffalo, N.Y.

       Appeal from the United States District Court for the Western District of New York
(Geraci, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the appeal is DISMISSED.

        James Nicholson appeals from the April 16, 2013 judgment of the United States District
Court for the Western District of New York (Geraci, J.) sentencing him principally to 57
months’ imprisonment following his guilty plea to five counts of bank robbery in violation of 18
U.S.C. § 2113(a). We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

        Waivers of the right to appeal a sentence are presumptively enforceable. United States v.
Gomez–Perez, 215 F.3d 315, 319 (2d Cir. 2000). “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.” United States v. Granik, 386 F.3d 404, 412 (2d Cir. 2004) (internal quotation marks
omitted). “A violation of a fundamental right warrants voiding an appeal waiver.” United States
v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011). “On the other hand, other meaningful errors are
insufficient to void an appeal waiver.” Id.

        Nicholson argues that his appellate waiver should not be enforced because the district
court “relied on improper reasons” in denying a downward departure based on the government’s
Section 5K1.1 motion. Specifically, Nicholson argues that the district court was not aware that it
could downwardly depart based on the 5K1.1 motion notwithstanding the fact that Nicholson
had received other consideration for his cooperation in his plea agreement. Relying on United
States v. Woltmann, 610 F.3d 37 (2d Cir. 2010), he argues this failure constituted an “abdication
of judicial responsibility and failure to recognize sentencing discretion.”

        Nicholson’s reliance on Woltmann is misplaced. In Woltmann the district court based its
sentence solely on the range agreed to in the plea agreement, refusing to consider either the
Section 3553(a) factors or a Section 5K1.1 motion in support of a downward departure. 610
F.3d at 42-43. Indeed, the Woltmann court accused the parties of “improperly attempting to
repudiate or modify” the plea agreement by even filing the 5K1.1 motion. Id. at 41. We declined
to enforce the appeal waiver there because the district court “refused to consider the 5K1.1 letter
and the § 3553(a) factors on the ground that the appeal waiver and the sentencing range in the
Agreement obviated anything else.” Id. at 42.

        Here, however, the district court acknowledged that the government had moved for a
downward departure based on Nicholson’s cooperation. The sentencing colloquy makes clear
that the district court simply chose not to downwardly depart based on either the 5K1.1 motion
or the defendant’s sentencing memorandum. Instead, the district court concluded that the “facts
and circumstances of this case” did not warrant a lesser sentence. This does not rise to the level
of “an abdication of judicial responsibility,” Woltmann, 610 F.3d at 43 (internal quotation marks
omitted), or “being sentenced entirely at the whim of the district court,” United States v.
Buissereth, 638 F.3d 114, 118 (2d Cir. 2011) (internal quotation marks omitted).




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       We have examined the remainder of Nicholson’s arguments and find them to be without
merit. Accordingly, the appeal is DISMISSED.


                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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