         10-2645-cr
         United States v. Joseph

                                 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 16th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                         Circuit Judges
 9                MIRIAM G. CEDARBAUM,*
10                         District Judge.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      v.                                           10-2645-cr
19
20       RORY JOSEPH,
21
22                                     Defendant-Appellant.
23
24
25
26
27
28
29

                *
                Judge Miriam G. Cedarbaum, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
 1   FOR APPELLANT:     NICHOLAS J. PINTO, New York, NY
 2
 3   FOR APPELLEE:      CHRISTOPHER M. MATTEI, Assistant United
 4                      States Attorney (Robert M. Spector,
 5                      Assistant United States Attorney, on the
 6                      brief), for David B. Fein, United States
 7                      Attorney for the District of Connecticut,
 8                      New Haven, CT
 9
10        Appeal from the United States District Court for the
11   District of Connecticut (Hall, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of United States District

15   Court for the District of Connecticut is AFFIRMED.

16       Appellant appeals from a judgment of the United States

17   District Court for the District of Connecticut (Hall, J.),

18   which imposed the statutory maximum sentence of 120 months’

19   imprisonment, followed by three years of supervised release.

20   Pursuant to a plea agreement, Defendant-Appellant Rory

21   Joseph pleaded guilty to a one-count indictment charging him

22   with unlawful possession of a firearm by an individual who

23   is subject to a restraining order in violation of 18 U.S.C.

24   §§ 922(g)(8) and 924(a)(2).   On June 24, 2010, the district

25   court sentenced Joseph to the statutory maximum of 120

26   months’ imprisonment, followed by three years of supervised

27   release.   Joseph requests that the Court vacate the sentence

28   and argues that the Government breached the plea agreement.


                                   2
1    Joseph also claims that the district court committed

2    procedural and substantive error when determining his

3    sentence.     We assume the parties’ familiarity with the

4    underlying facts, the procedural history, and the issues

5    presented for review.

6        To determine whether a plea agreement has been

7    breached, we “look[] to the reasonable understanding of the

8    parties as to the terms of the agreement.”       United States v.

9    Riera, 298 F.3d 128, 133 (2d Cir. 2002) (internal quotation

10   marks and citations omitted).       Although we typically review

11   the district court’s interpretation of a plea agreement de

12   novo, id., where, as here, the defendant fails to object

13   below to the government’s alleged breach of a plea

14   agreement, the defendant has forfeited the claim unless he

15   can show plain error under Federal Rule of Criminal

16   Procedure 52(b).     Puckett v. United States, 556 U.S. 129,

17   134 (2009).     Joseph is not entitled to relief because not

18   only is there no plain error, there is no error at all.

19       Joseph’s principal argument on appeal is that the

20   Government breached the plea agreement by using information

21   known to the Government at the time the plea agreement was

22   executed to advocate later, during sentencing, for a two-


                                     3
1    level enhancement for obstruction of justice and against a

2    reduction for acceptance of responsibility.       Relying heavily

3    on United States v. Palladino, 347 F.3d 29 (2d Cir. 2003),

4    Joseph argues that because the Government learned (and did

5    not disclose to Joseph) that he was soliciting Cornelius

6    Taylor to murder his former girlfriend in October 2009—two

7    months before the plea agreement was executed—the Government

8    could not rely on this conduct at sentencing.

9        We conclude that the Government did not breach the plea

10   agreement by relying on this conduct.       Joseph’s campaign to

11   orchestrate his former girlfriend’s murder was still under

12   investigation when the plea agreement was signed and,

13   therefore, provides a “good faith post-agreement basis” to

14   advocate for sentencing enhancements and against a reduction

15   for acceptance of responsibility.       United States v. Roe, 445

16   F.3d 202, 210 (2d Cir. 2006).       Indeed, the conduct at issue

17   continued for two months after the execution of the

18   agreement.   Moreover, Palladino is distinguishable.      There,

19   we held that the government breached the plea agreement by

20   seeking an enhancement based on information known to the

21   government before the plea agreement.       Palladino, 347 F.3d

22   at 34.   Here, by contrast, the information was still under


                                     4
1    investigation when the plea agreement was executed.

2        We also reject Joseph’s contentions that the Government

3    breached the plea agreement by advocating for additional

4    enhancements other than those specifically outlined in the

5    plea agreement and by advocating for a non-Guideline

6    sentence.   The Government’s actions were entirely consistent

7    with the plain language of the plea agreement, which states:

8    “The parties reserve their respective rights to argue for or

9    oppose additional adjustments to, and departures from, the

10   applicable guideline range as determined by the Court.

11   Additionally, both parties reserve their right to argue for

12   and/or oppose a non-guideline sentence.”

13       We turn next to Joseph’s claim that the district court

14   committed procedural and substantive error when determining

15   his sentence.     We review the sentence imposed by the

16   district court to determine whether it is reasonable.

17   United States v. Cavera, 550 F.3d 180, 187-88 (2d Cir. 2008)

18   (en banc); Gall v. United States, 552 U.S. 38, 46 (2007).

19   Reasonableness review, which has both procedural and

20   substantive components, is “akin to review for abuse of

21   discretion.”    United States v. Fernandez, 443 F.3d 19, 27

22   (2d Cir. 2006).


                                     5
1        First, we reject Joseph’s claim that the district court

2    committed procedural error by imposing a two-level

3    enhancement for obstruction of justice under U.S.S.G. §

4    3C1.1.   Generally, in order to apply this enhancement, the

5    district court must find that the defendant acted with

6    “specific intent to obstruct justice.”     United States v.

7    Woodard, 239 F.3d 159, 162 (2d Cir. 2001) (internal

8    quotation marks omitted).     Here, the district court found

9    that the enhancement was proper because following his

10   arrest, from August 2009 to February 2010, Joseph attempted

11   to solicit Taylor to murder his former girlfriend.     In

12   making this finding, the district court found the testimony

13   of Taylor to be particularly credible.     We cannot say that

14   this was clearly erroneous.     Taylor’s testimony was also

15   corroborated by the testimony of Special Agent Wheeler.

16       Moreover, we reject Joseph’s argument that the district

17   court erred by finding that Joseph attempted to arrange his

18   former girlfriend’s murder with the specific intent of

19   making her unavailable for sentencing.     Taylor testified

20   that Joseph’s motivation for murdering his former girlfriend

21   was that “[h]e didn’t want her to be around where she can

22   testify against him.”   Indeed, even if, as Defendant argues,


                                     6
1    he was unaware of his former girlfriend’s role in the

2    prosecution in August 2009 when he started soliciting Taylor

3    to murder her, there is no doubt that he would have been

4    aware of her potential role by February 2010 after receiving

5    the Government’s discovery materials.

6        Second, the district court did not commit procedural

7    error by refusing to grant Joseph a reduction to his offense

8    level for acceptance of responsibility under U.S.S.G. §

9    3E1.1(a).   The reduction is unavailable, except in

10   “‘extraordinary cases,’” to a defendant properly found to

11   merit an obstruction-of-justice enhancement.   United States

12   v. Champion, 234 F.3d 106, 110 (2d Cir. 2000) (per curiam)

13   (quoting U.S.S.G. § 3E1.1, cmt. n.4).

14       Joseph argues that the district court erred in not

15   granting the reduction because he did not frivolously

16   contest relevant conduct.   This misses the point.    The

17   district court focused on Joseph’s post-arrest conduct, not

18   Joseph’s denials of Taylor’s testimony.   The district court

19   stated: “I don’t see how a person who commits a crime . . .

20   [and] who then while incarcerated . . . does the same thing

21   over again can be said to have accepted responsibility for

22   the offense.”   Considering that Joseph solicited Taylor to


                                   7
1    murder his former girlfriend for over five months, there was

2    more than adequate evidence in the record to make this

3    finding.

4        Third, we find no procedural error in the district

5    court’s upward departure based on extreme psychological

6    injury to the victim, Joseph’s former girlfriend.    The

7    Guidelines permit an upward departure when psychological

8    injury to the defendant's victim is “much more serious than

9    that normally resulting from commission of the offense.”

10   U.S.S.G. § 5K2.3.    In addition, there must be “a substantial

11   impairment of the intellectual, psychological, emotional, or

12   behavioral functioning of a victim, when the impairment is

13   likely to be of an extended or continuous duration, and when

14   the impairment manifests itself by physical or psychological

15   symptoms or by changes in behavior patterns.”    United States

16   v. Lasaga, 328 F.3d 61, 65-66 (2d Cir. 2003) (quoting

17   U.S.S.G. § 5K2.3).

18       Here, the district court engaged in a thorough analysis

19   of this Court’s case law in concluding that a departure was

20   appropriate.   The district court noted: “It strikes me that

21   the victim in this case clearly demonstrates extreme

22   isolation, personality change, unusual suspicion . . . [a]nd


                                    8
1    prolonged fear, prolonged because of a very active defendant

2    that continued long after the commission of the offense of

3    conviction.”     The district court also highlighted the

4    victim’s sense of guilt about the endangerment of her

5    family, which the district court observed was not “a

6    psychological harm that would normally be experienced in the

7    commission of this crime.”     Accordingly, we find no error in

8    the district court’s departure.

9        Finally, we need not consider Joseph’s claim that the

10   district court’s sentence was substantively unreasonable.

11   Joseph did not raise this issue until his reply brief and,

12   therefore, it has been waived.      See Conn. Bar Ass’n v.

13   United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010).

14       We have considered Joseph’s remaining arguments and,

15   after a thorough review of the record, find them to be

16   without merit.

17       For the foregoing reasons, the judgment of the district

18   court imposing a sentence principally of 120 months’

19   imprisonment is hereby AFFIRMED.
20
21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24




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