12-1822-cr
United States v. Miri



                 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 APPELLAT E 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 TO A SUMMARY O RDER 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 27th day of June, two thousand thirteen.

PRESENT:   CHESTER J. STRAUB,
           PETER W. HALL,
           DENNY CHIN,
                     Circuit Judges.

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UNITED STATES OF AMERICA,
                    Appellee,

                        -v-                           12-1822-cr

VICTOR MIRI,
                        Defendant-Appellant.

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FOR APPELLEE:                     Jason Cowley, Assistant United
                                  States Attorney, for Preet
                                  Bharara, United States Attorney
                                  for the Southern District of New
                                  York, New York, New York.
FOR DEFENDANT-APPELLANT:        Robert J. Boyle, Law Office of
                                Robert J. Boyle, New York, New
                                York.

         Appeal from the United States District Court for the

Southern District of New York (McMahon, J.).

         UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the appeal is DISMISSED or, alternatively, the

judgment is AFFIRMED.

         Defendant-appellant Victor Miri pled guilty, pursuant

to a plea agreement, to possession of a firearm after having

been previously convicted of a felony, in violation of 18 U.S.C.

§ 922(g)(1).    The plea agreement included a waiver of his right

to appeal or otherwise challenge "any sentence within or below

. . . 87 to 108 months' imprisonment."      The district court

(McMahon, J.) principally sentenced Miri to 108 months'

imprisonment.    Miri appeals, challenging the substantive

reasonableness of his sentence.

         As a preliminary matter, we conclude that Miri's

appellate waiver is enforceable.       Miri asserts that we should

not enforce the appellate waiver in the plea agreement because

the magistrate court (Gorenstein, M.J.) wrongly informed him

during the plea allocution that "if you get a sentence of 87

months or less you are giving up your right to challenge that

sentence."     Plea Tr. 9:25-10:2 (Sept. 6, 2011) (emphasis added).
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Hence, although Miri received a sentence covered by the

appellate waiver in the plea agreement, he asserts that the

magistrate court's misinformation rendered that waiver unknowing

and involuntary.

            It is apparent that the magistrate judge misspoke when

he informed Miri of the terms of his appellate waiver.1             See Fed.

R. Crim. P. 11(b)(1)(N) (requiring court to inform defendant of

"the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence").            Nevertheless,

"it is well-settled that a defendant's knowing and voluntary

waiver of his right to appeal a sentence within an agreed upon

guideline range is enforceable."           United States v. Lee, 523 F.3d

104, 106 (2d Cir. 2008) (omission and quotation marks omitted).

Furthermore, "a judge's remark at sentencing . . . does not

affect a waiver that is clear and fully enforceable when

entered."    United States v. Roitman, 245 F.3d 124, 126 (2d Cir.

2001).

            We have before us several indicia of the knowing and

voluntary nature of Miri's waiver:          (1) his signature on the

written plea agreement; (2) his statements at the plea

allocution; (3) a letter to the district court from the

     1
            The district court, moreover, may have compounded the confusion
by initially indicating during a hearing that it would adhere to the
appellate waiver as stated on the record by the magistrate court.

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government after the error was made, which confirmed that Miri

and his lawyer "understand and agree to the appellate waiver as

described in the plea agreement" and would so clarify on the

record; and (4) Miri's statements at sentencing.   Moreover, when

the error was discussed before the district court, Miri never

sought to withdraw his plea or otherwise challenged the extent

of the appellate waiver as described in the plea agreement.

          Based on the foregoing, notwithstanding the magistrate

court's erroneous description of the appellate waiver, Miri

understood that the plea agreement waived his right to appeal a

sentence of 108 months' imprisonment or less.   See id. (Rule 11

error did not undermine clear waiver where error did not affect

defendant's understanding of waiver).   Thus, reviewing the

record as a whole, we conclude that Miri's knowing and voluntary

waiver is enforceable and that we lack jurisdiction to hear this

appeal.   See United States v. Arevalo, 628 F.3d 93, 98 (2d Cir.

2010); see also United States v. Dominguez Benitez, 542 U.S. 74,

80 (2004) (courts "must look to the entire record" to assess

effect of Rule 11 error).

          Even if, however, we were to reach the merits of

Miri's appeal, his arguments challenging the substantive

reasonableness of his sentence would fail.   We review the length

of a sentence for reasonableness, United States v. Chu, 714 F.3d
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742, 746 (2d Cir. 2013) (per curiam), "tak[ing] into account the

totality of the circumstances, giving due deference to the

sentencing judge's exercise of discretion, and bearing in mind

the institutional advantages of district courts," United States

v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).   Miri was

sentenced on a single count of felony possession but, as the

district court described, the offense involved possession of "1,

2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 firearms and more than 5,000

rounds of ammunition of various makes and calibers."   Sentencing

Tr. 8:5-6 (Mar. 29, 2012).   Moreover, the district court was

openly -- and understandably -- skeptical of Miri's claim that

he was merely a collector of guns, particularly as guns were

found hidden underneath the mattress of his bed, in a bedroom

closet, and in a kitchen drawer; five of the guns were found

loaded; and the police also recovered fake silencers and night

vision goggles from his home.

          While acknowledging certain mitigating circumstances,

the district court then found the 108-month sentence would

appropriately "punish this case, this conduct, your conduct."

Upon reviewing the record, even assuming Miri did not waive his

right to appeal, we conclude that the sentence imposed was not

"shockingly high . . . or otherwise unsupportable as a matter of

law."   United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
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         We have considered Miri's remaining arguments and

conclude they are without merit.    For the foregoing reasons, we

DISMISS the appeal or, alternatively, we AFFIRM the judgment of

the district court.

                             FOR THE COURT:
                             Catherine O'Hagan Wolfe, Clerk




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