     14-2272
     United States v. Bobbitt

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of April, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                PETER W. HALL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - X
12       UNITED STATES OF AMERICA,
13                         Appellee,
14
15                    -v.-                                               14-2272
16
17       BRANDON BOBBITT,
18                         Appellant.
19       - - - - - - - - - - - - - - - X
20
21       FOR APPELLANT:                        Ryan Thomas Truskoski,
22                                             Harwinton, Connecticut.
23
24       FOR APPELLEE:                         Stephan J. Baczynski, for
25                                             William J. Hochul, Jr., United
26                                             States Attorney for the Western
27                                             District of New York, Buffalo,
28                                             New York.
29
 1        Appeal from a judgment of the United States District
 2   Court for the Western District of New York (Arcara, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the appeal be DISMISSED.
 6
 7        Brandon Bobbitt appeals from the judgment of the United
 8   States District Court for the Western District of New York
 9   (Arcara, J.), sentencing him after his guilty plea
10   principally to 210 months’ imprisonment. On appeal, Bobbitt
11   challenges the procedural reasonableness of his sentence.
12   We assume the parties’ familiarity with the underlying
13   facts, the procedural history, and the issues presented for
14   review.
15
16        Bobbitt waived his right to appeal a sentence that
17   falls within the range of sentences specified in the plea
18   agreement. “Waivers of the right to appeal a sentence are
19   presumptively enforceable.” United States v. Riggi, 649
20   F.3d 143, 147 (2d Cir. 2011) (internal quotation marks
21   omitted). Bobbitt does not contend that his appeal waiver
22   was not made knowingly, that his sentence was based on
23   constitutionally impermissible factors, or that the
24   government has breached its agreement. See United States v.
25   Buissereth, 638 F.3d 114, 117-18 (2d Cir. 2011) (setting out
26   limits on enforceability of appeal waiver but finding appeal
27   waiver “preclude[s] this Court from correcting the
28   [procedural] errors alleged to have occurred below”).
29
30        Bobbitt contends that the district court focused on the
31   appeal waiver to the exclusion of appropriate sentencing
32   considerations under 18 U.S.C. § 3553(a). Cf. United States
33   v. Woltman, 610 F.3d 37, 42 (2d Cir. 2010) (finding district
34   court “refused to consider the 5K1.1 letter and the
35   § 3553(a) factors on the ground that the appeal waiver and
36   the sentencing range in the Agreement obviated anything
37   else.”). The record does not support the contention that
38   the court failed to consider the relevant circumstances.
39   Nor did the district court defeat the parties’ reasonable
40   expectations: Bobbitt was sentenced to a term of
41   incarceration at the high-end of the range contemplated in
42   his plea agreement. Cf. United States v. Borrego, 388 F.3d
43   66, 69 (2d Cir. 2004) (“[D]isputes about applicable
44   guidelines need not be resolved where the sentence falls
45   within either of two arguably applicable guideline ranges
46   and the same sentence would have been imposed under either
47   guideline range.” (internal quotation marks omitted)).

                                  2
1        For the foregoing reasons, and finding no merit in
2   Bobbitt’s other arguments, we hereby DISMISS the appeal.
3
4                              FOR THE COURT:
5                              CATHERINE O’HAGAN WOLFE, CLERK
6




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