15-2021 (L)
United States v. Kilpatrick




15-2021(L)
United States v. Kilpatrick

                              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, at 40 Foley Square, in the City of New York, on
the 3rd day of November, two thousand sixteen.

Present:              ROBERT A. KATZMANN,
                           Chief Judge,
                      RICHARD C. WESLEY,
                      SUSAN L. CARNEY,
                           Circuit Judges.


UNITED STATES OF AMERICA,

           Appellee,

                      -v-                            Nos. 15-2021, 15-2330

KEVIN MIZELL, EDWIN SMITH, JOSHUA
FLADGER, RICHARD SHACKLEFORD,
AMAR TAYLOR, RONATHAN FLADGER,
NOEL BIDO, MR. JOSEPH OTERO, SHAWN
ARNOLD MCFADDEN, DEQUAN BROWN,
TYRE DAVIS, KAYMAR FRANCIS, JOSEPH
HUNTLEY, ODANIS OZUNA, JAMES
ANDERSON, MARK GRAYSON, MICHAEL
JAMES, MALIK MCCOLLUM, ROBERT
WANNAMAKER, EDWARD BINYARD,
NICHOLAS ROSARIO, HENNISON CURRY,

           Defendants,




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TAYVON KILPATRICK, TEVIN MIZELL,

        Defendants-Appellants.


For Appellee:                                          JOSHUA A. NAFTALIS, Assistant United
                                                       States Attorney (Abigail S. Kurland and
                                                       Anna M. Skotko, Assistant United States
                                                       Attorneys, on the brief), for Preet Bharara,
                                                       United States Attorney for the Southern
                                                       District of New York, New York, NY.

For Defendant-Appellant Tavyon Kilpatrick:             STACEY VAN MALDEN (Lawrence A. Dubin,
                                                       on the brief), New York, NY.

For Defendant-Appellant Tevin Mizell:                  ANDREW FREIFELD, Law Office of Andrew
                                                       Freifeld, New York, NY.

        Appeal from the United States District Court for the Southern District of New York

(Sullivan, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgments of the district court are AFFIRMED.

        Tayvon Kilpatrick and Tevin Mizell were members of a street gang that operated in a

Bronx housing project from 2006 through 2014. They each pleaded guilty to one RICO

conspiracy count, and Mizell also pleaded guilty to possessing a firearm in furtherance of the

RICO conspiracy. They appeal only their sentences. Because neither preserved relevant

objections below, we review their sentences for plain error. See Puckett v. United States, 556

U.S. 129, 134–35 (2009). Plain error is a high bar:

        First, there must be an error or defect . . . . Second, the legal error must be clear or
        obvious, rather than subject to reasonable dispute. Third, the error must have
        affected the appellant’s substantial rights, which in the ordinary case means he
        must demonstrate that it affected the outcome of the district court proceedings.
        Fourth and finally, if the above three prongs are satisfied, the court of appeals has
        the discretion to remedy the error—discretion which ought to be exercised only if
        the error seriously affects the fairness, integrity or public reputation of judicial
        proceedings.


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Id. at 135 (internal quotation marks, citations, and alterations omitted).

       I.      Kilpatrick’s Appeal

       The district court sentenced Kilpatrick to 84 months’ imprisonment. Kilpatrick argues

that the district court committed a procedural error by miscalculating his Criminal History

Category under the United States Sentencing Guidelines. The district court calculated a Criminal

History Category of IV after adding seven criminal history points. The district court added two

points for Kilpatrick’s participation in a July 31, 2011 robbery, for which Kilpatrick was

sentenced to one year of imprisonment on January 11, 2013. U.S.S.G. § 4A1.1(b). The district

court added three points for Kilpatrick’s participation in an August 21, 2011 shooting, for which

Kilpatrick was sentenced to two years’ imprisonment, also on January 11, 2013. U.S.S.G.

§ 4A1.1(a). The district court also added two points because Kilpatrick committed a September

10, 2013 robbery while on parole for the 2011 robbery. U.S.S.G. § 4A1.1(d).

       Kilpatrick argues that the district court should not have added any criminal history points

for the July 2011 robbery and the August 2011 shooting because they were part of the charged

RICO conspiracy. Kilpatrick would have us ignore Application Note 4 to U.S.S.G. § 2E1.1:

       Certain conduct may be charged in the count of conviction as part of a “pattern of
       racketeering activity” even though the defendant has previously been sentenced
       for that conduct. Where such previously imposed sentence resulted from a
       conviction prior to the last overt act of the instant offense, treat as a prior
       sentence under §4A1.2(a)(1) and not as part of the instant offense.
(emphasis added). U.S.S.G. § 2E1.1 Application Note 4 is authoritative in this context. See

Stinson v. United States, 508 U.S. 36, 44–45 (1993). Because Kilpatrick was adjudicated or

convicted and sentenced for the 2011 offenses before the September 10, 2013 robbery, the

district court properly treated the sentences from these offenses as prior sentences and added

criminal history points.




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       Kilpatrick also argues that the district court should not have treated the sentences for the

2011 offenses separately because they were imposed on the same day. This argument is

foreclosed by U.S.S.G. § 4A1.2(a)(2), which states that “[p]rior sentences always are counted

separately if the sentences were imposed for offenses that were separated by an intervening arrest

(i.e., the defendant is arrested for the first offense prior to committing the second offense).”

Kilpatrick was arrested for the July 2011 robbery on July 31, 2011, before he participated in the

August 21, 2011 shooting. As such, the district court did not err in treating the sentences

separately. In sum, the district court did not commit procedural error, plain or otherwise, in

sentencing Kilpatrick.

       II.     Mizell’s Appeal

       The district court sentenced Mizell to 90 months’ imprisonment, after Mizell pleaded

guilty on November 13, 2014 pursuant to a plea agreement. Mizell claims that the government

breached this plea agreement and asks that his sentence be vacated and his case remanded to a

different judge. As a threshold matter, the government argues that we should not reach the merits

of Mizell’s appeal because of an appeal waiver in the plea agreement. Although “[t]his Court has

repeatedly upheld the validity of [appeal] waivers,” they may be unenforceable “when the

government breache[s] the plea agreement.” United States v. Gomez-Perez, 215 F.3d 315, 318,

319 (2d Cir. 2000); see also United States v. Rosa, 123 F.3d 94, 98 (2d Cir. 1997) (“A defendant

may appeal if the Government breaches the terms of the plea agreement.”). As explained below,

the government breached the plea agreement in this case, so we decline to enforce the appeal

waiver, and we reach the merits of Mizell’s appeal.

       This Court “review[s] interpretations of plea agreements de novo and in accordance with

principles of contract law.” United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002). “To




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determine whether a plea agreement has been breached, [this Court] look[s] to the reasonable

understanding of the parties as to the terms of the agreement.” Id. (internal quotation marks

omitted). “[B]ecause plea bargains require defendants to waive fundamental constitutional rights,

prosecutors are held to meticulous standards of performance.” United States v. Vaval, 404 F.3d

144, 152-53 (2d Cir. 2005).

       Mizell first argues that the Government breached the plea agreement by referring to

Mizell as a “leader” and to his “leadership” at his sentencing hearing. See Mizell App. 171, 174,

202-03. Although the plea agreement stipulated that Mizell was a “manager or supervisor,” such

that a three-point enhancement for his role was appropriate under U.S.S.G. § 3B1.1(b), Mizell

claims that the government effectively advocated for a four-point role enhancement for “an

organizer or leader” under U.S.S.G. § 3B1.1(a). However, the government explicitly advocated

for a three-point enhancement at the sentencing hearing. See Mizell App.183 (“[W]e want the

three points.”). In addition, the district court ultimately decided against any role enhancement.

       Mizell also claims that the government breached the plea agreement by proposing a

Criminal History Category of II in its sentencing submission, instead of a Criminal History

Category of I as stipulated in the plea agreement. In particular, the government stated that the

plea agreement had incorrectly calculated Mizell’s Criminal History Category by ignoring

U.S.S.G. § 2E1.1 Application Note 4 and failing to add three points for Mizell’s adjudication as

a youthful offender for possession of a weapon in the second degree. U.S.S.G. § 2E1.1

Application Note 4 applied because Mizell was sentenced for this offense on October 10, 2012,

prior to his participation in a November 16, 2013 shooting that was part of the RICO conspiracy.

       The government insists that, although it openly disagreed with the plea agreement in its

sentencing submission, it nonetheless did not breach the agreement. First, the government relies




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on a provision in the plea agreement stating “[i]n the event that . . . the [district court]

contemplates any Guidelines adjustments, departures, or calculations different from those

stipulated to [here], . . . the parties reserve the right to answer any inquiries and make all

appropriate arguments concerning the same.” Mizell App. 46. The government argues that the

district court inquired about U.S.S.G. § 2E1.1 Application Note 4 at the sentencings of Mizell’s

co-defendants and, in response to these inquiries or in anticipation of similar ones pertaining to

Mizell, the government could deviate from the plea agreement’s stipulated Guidelines range.

        “[C]ourts construe plea agreements strictly against the Government.” United States v.

Mergen, 764 F.3d 199, 208 (2d Cir. 2014) (quoting United States v. Ready, 82 F.3d 551, 559 (2d

Cir. 1996)). The language of the plea agreement clearly contemplates only inquiries from the

district court directed specifically to Mizell and his sentence. Moreover, Mizell’s understanding

that the government could not deviate from the calculations in the plea agreement because of

inquiries in co-defendants’ proceedings was reasonable.

        The government also argues that the plea agreement allowed it “to present to . . . the

[district court] any facts relevant to sentencing” and “to seek an appropriately adjusted

Guidelines range if it is determined based upon new information that the defendant’s criminal

history category is different from that set forth [in the plea agreement].” Mizell App. 45.

However, these provisions are not relevant because the government’s recalculation of Mizell’s

Criminal History Category did not involve new facts or information, only a change in the

government’s legal position as to the application of the Guidelines.

        Moreover, the government contends that it did not breach the agreement because of its

duty of candor to the district court. The government’s duty of candor does not excuse or remedy

a breach of a plea agreement. Similarly, the government points out that it advocated for a




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sentence within the Guidelines Range stipulated to in the plea agreement. This also does not

excuse or remedy the government’s breach. Regardless of the government’s ultimate

recommendation, Mizell had a “reasonable understanding” that the Criminal History Category

calculation the government presented to the district court would match the calculations in the

plea agreement. Riera, 298 F.3d at 133.

       Based on the foregoing, Mizell has satisfied the first two prongs of the plain-error test.

See Puckett, 556 U.S. at 135. The government breached the plea agreement by stipulating to a

Criminal History Category of I and then proposing a Criminal History Category of II to the

district court in its sentencing submission.

       However, Mizell fails the third prong of the plain-error test. The third prong requires that

the appellant show prejudice—in this context, that the breach affected his sentence. Id. at 142

n.4. At Mizell’s sentencing, Judge Sullivan stated that the sentencing was “not . . . taking place

in a vacuum” and that he was familiar with the case and Mizell’s co-defendants. Mizell App.

158. Issues related to U.S.S.G. § 2E1.1 Application Note 4 were raised during several of these

co-defendants’ sentencings, including one during which the district court brought up U.S.SG.

§ 2E1.1 Application Note 4 sua sponte. In addition, after accepting the government’s

recommendation that criminal history points be added under U.S.S.G. § 2E1.1 Application Note

4, the district court sua sponte deviated further from the plea agreement’s stipulated criminal-

history calculation by adding points because Mizell was on parole at the time of the November

16, 2013 shooting. The district court’s sua sponte attentiveness to U.S.S.G. § 2E1.1 Application

Note 4 and Mizell’s Criminal History Category calculation demonstrates that the district court

would have calculated a Criminal History Category of III for Mizell regardless of the

government’s breach. As such, Mizell has failed to show that the government’s breach affected




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his sentence. Because the third prong of the plain-error test is not satisfied, we do not reach the

fourth prong. Puckett, 556 U.S. at 135.

       We have considered all of Kilpatrick’s and Mizell’s contentions on appeal and have

found in them no basis for reversal. For the foregoing reasons, the judgments of the district court

are AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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