         12-1019-cr
         United States v. Lopez

                                     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 for the Second
 2       Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
 3       Square, in the City of New York, on the 12th day of November, two thousand and
 4       thirteen.
 5
 6       PRESENT:
 7
 8               DEBRA ANN LIVINGSTON,
 9               GERARD E. LYNCH,
10               CHRISTOPHER F. DRONEY,
11
12                             Circuit Judges.
13       _______________________________________________
14
15       UNITED STATES OF AMERICA,
16
17                                        Appellee,

18                        -v.-                                                      No. 12-1019-cr
19
20       TOMISLAV YUTRONIC, JAIROLD GOMEZ, AKA FLACO, CINDY TORRES, AKA SINDY,
21       WILSON ABAD, AKA THE LAWYER, CECILIA ABAD, AKA LA GAGA, MAGDALENA
22       GONZAGA, AKA MAGGIE, AKA MAGGIE TERRANOVA, RAYMOND PATRICIO
23       TERRANOVA, DARIO JIMENEZ, AKA DARIO AVECILLAS, AKA PRIMO, AKA

                                                              1
 1   AMIGUITO, JOSEPH BARANEK,

 2                            Defendants,

 3   HAROLD LOPEZ,

 4                         Defendant-Appellant.
 5   _______________________________________________

 6                                  BRIAN A. JACOBS, (Jennifer G. Rodgers, on the brief),
 7                                  Assistant United States Attorneys, Of Counsel. For
 8                                  Preet Bharara United States Attorney for the
 9                                  Southern District of New York, New York, New
10                                  York, for Appellee.

11                                  LAURIE S. HERSHEY, Manhasset, New York, for
12                                  Defendant-Appellant.

13         Appeal from a judgment of conviction and order of the United States District

14   Court for the Southern District of New York (Keenan, J.).

15         UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and

16   DECREED that the appeal from the December 21, 2011 judgment of conviction is

17   DISMISSED in part. The judgment of the District Court that Lopez forfeit “any

18   proceeds gained as a result of [his] criminal activity in this case” is VACATED and

19   REMANDED.

20         Defendant-Appellant Harold Lopez (“Lopez”) pleaded guilty to conspiracy

21   to distribute a controlled substance, namely 100 grams and more of heroin and 500


                                             2
 1   grams and more of cocaine, in violation of 21 U.S.C. §§ 846, 812, 841(a)(1), and

 2   841(b)(1)(B). Lopez’s plea agreement included a provision in which he waived the

 3   right to appeal any sentence within or below the stipulated Guidelines range of 151

 4   to 188 months. See U.S. SENTENCING GUIDELINES MANUAL. The district court

 5   sentenced Lopez to a term of 144 months imprisonment, a sentence below the

 6   stipulated Guidelines range, to be followed by five years’ supervised release, and

 7   ordered that Lopez forfeit “[a]ny proceeds gained as a result of [his] criminal activity

 8   in this case.” Lopez appeals, challenging the validity of the district court’s forfeiture

 9   order. He also contends that his appeal waiver is invalid and that, accordingly, he

10   may challenge his sentence for procedural error. We assume the parties’ familiarity

11   with the underlying facts and procedural history of the case, and with the issues on

12   appeal.

13         1. Forfeiture Order

14         On appeal of a forfeiture order, we generally review the district court’s

15   findings of fact for clear error and its legal conclusions de novo. See United States v.

16   Sabhnani, 599 F.3d 215, 261 (2d Cir. 2010). Where, as here, no forfeiture error was

17   raised in the district court, however, the claim of error is forfeited on appeal, and we

18   review only for plain error. See FED. R. CRIM. P. 52(b); United States v. Uddin, 551 F.3d


                                                3
 1   176, 181 (2d Cir. 2009). Accordingly, we review for plain error. Plain error is “(1)

 2   error, (2) that is plain, and (3) that affects substantial rights. If all three conditions

 3   are met, an appellate court may then exercise its discretion to notice a forfeited error,

 4   but only if (4) the error seriously affects the fairness, integrity, or public reputation

 5   of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 464-67 (1997) (internal

 6   quotation marks and citation omitted).

 7         Lopez’s counsel urges this court to vacate the forfeiture order on the ground

 8   that the district court failed to enter a preliminary forfeiture order pursuant to FED.

 9   R. CRIM. P. 32.2(b)(2)(A). The government responds that the order entered here was

10   a general order pursuant to Rule 32.2(b)(2)(C) that does not require the filing of a

11   preliminary order. We agree, but nevertheless vacate the forfeiture order and

12   remand the case so that, provided forfeiture is still being sought by the Government,

13   the district court may determine the amount of the forfeiture money judgment or,

14   upon entry of a general order not specifying an amount, indicate its intent to amend

15   pursuant to Rule 32.2(e)(1).

16         Federal Rule of Criminal Procedure 32.2(b)(2)(C) permits a district judge to

17   enter a general forfeiture order if “before sentencing, the court cannot . . . calculate

18   the total amount of the money judgment.” FED. R. CRIM. P. 32.2(b)(2)(C). The rule


                                                 4
 1   directs district judges, in entering such an order, to “(i) list[ ] any identified property;

 2   (ii) describe[ ] other property in general terms; and (iii) state[ ] that the order will be

 3   amended under Rule 32.2(e)(1) when . . . the amount of the money judgment has

 4   been calculated.” Id. Here, it is clear from the record that, prior to sentencing, the

 5   district court was not in possession of the requisite information to enter a specific

 6   order. It is unclear, however, whether the district court intended to amend this

 7   general order when the amount of a money judgment was calculated. Accordingly,

 8   we vacate and remand the case to the district court for clarification as to the amount

 9   of the forfeiture money judgment or its intent to amend at a later date.1

10          2. Sentencing Appeal

11          Lopez next claims that the appeal waiver contained in his plea agreement is

12   invalid because the stipulated Guidelines range in his plea agreement was

13   improperly calculated. He thus argues that he should be able to challenge his

14   sentence as procedurally unfair. We disagree.




            1
             We note that in a letter accompanying his pro se supplemental brief, Lopez
     urged this court to ignore the arguments concerning forfeiture in his attorney’s brief.
     We need not address the effect, if any, of Lopez’s submission in this regard, because
     upon independent review, we review for and find plain error in the circumstances
     here in the failure to specify a forfeiture amount or provide some specific indication
     of an intent to do so at a future time.

                                                  5
 1         A waiver of the right to appeal is enforced by an appellate court “if the record

 2   ‘clearly demonstrates’ that the waiver was both knowing . . . and voluntary.” United

 3   States v. Ready, 82 F.3d 551, 557 (2d Cir. 1996). Even if a plea agreement contains a

 4   mutual mistake in the applicable Guidelines range, moreover, the agreement is not

 5   a proper candidate for rescission where the agreement contains “express provisions

 6   with respect to the possibility of a mistaken prediction as to sentencing

 7   calculations.” United States v. Rosen, 409 F.3d 535, 548 (2005).

 8         Here, Lopez’s waiver of the right to appeal was both knowing and voluntary.

 9   Lopez expressed a full understanding of the consequences of his guilty plea. In

10   Lopez’s plea colloquy, the district court confirmed that Lopez understood that

11   pursuant to his plea agreement, “the sentencing range for [Lopez’s] case and

12   [Lopez’s] criminal history background or category and the offense that [Lopez was]

13   pleading guilty to is 151 to 188 months.” The district court further directed Lopez’s

14   attention to his appeal waiver, and specifically confirmed that Lopez understood the

15   consequences of such a waiver.

16         Further, Lopez’s plea agreement contains express provisions indicating that

17   the Guidelines range to be determined by the Probation Department and the judge

18   could be calculated differently from the stipulated Guidelines range. The plea


                                               6
 1   agreement makes clear that, notwithstanding any differences between the two

 2   ranges, “[i]t is agreed [ ] that the defendant will not file a direct appeal, nor litigate

 3   . . . any sentence within or below the Stipulated Guidelines Range set forth [in the

 4   plea agreement].” Here, the 144-month sentence imposed reflects an express

 5   downward variance from the stipulated Guidelines range.                Accordingly, we

 6   conclude that Lopez’s argument that his appeal waiver is invalid is without merit.

 7   We therefore dismiss his appeal as to this claim.

 8         We have reviewed Lopez’s remaining arguments, including those in his pro

 9   se supplemental briefs, and find them to be without merit. For the foregoing

10   reasons, the appeal from the judgment of conviction is DISMISSED in part, the

11   judgment of the district court as to forfeiture is VACATED, and the case is

12   REMANDED.

13                                                   FOR THE COURT:
14                                                   Catherine O’Hagan Wolfe, Clerk




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