17-3590-cr
United States v. Lewis

                              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, 40 Foley Square, in the City of New York on the
23rd day of August, two thousand eighteen.

Present:    JON O. NEWMAN,
            ROSEMARY S. POOLER,
                        Circuit Judges.
            DENISE COTE, 1
                        District Judge.
____________________________________________________
UNITED STATES OF AMERICA,

                                Appellee,
                         v.                                                  17-3590-cr

RASHOD LEWIS, AKA SANTANA, AKA EL_CHAPOBALLA,
AKA SANTANA.BUGATTI,

                        Defendant-Appellant. 2
_____________________________________________________

Appearing for Appellant:        Azra Feldman, Feldman & Feldman, Uniondale, N.Y.

Appearing for Appellee:         Andrew C. Adams, Assistant United States Attorney (Sarah K.
                                Eddy, Assistant United States Attorney, on the brief), for Geoffrey
                                S. Berman, United States Attorney for the Southern District of
                                New York, New York, N.Y.

1
 Judge Denise Cote, United States District Court for the Southern District of New York, sitting
by designation.
2
    The Clerk of the Court is directed to amend the caption as above.
Appeal from the United States District Court for the Southern District of New York (Wood, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is DISMISSED in
part and AFFIRMED in part.

        Rashod Lewis appeals from the November 2, 2017 judgment of conviction sentencing
him to 360 months’ imprisonment, followed by five years’ supervised release, following his plea
of guilty to one count of use and possession of firearms in furtherance of narcotics trafficking, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

       Lewis entered into a plea agreement with the government that contained a waiver of his
appellate rights, in which it was

               agreed (i) that the defendant will not file a direct appeal; nor bring
               a collateral challenge, including but not limited to an application
               under Title 28, United States Code, Section 2255 and/or Section
               2241; nor seek a sentence modification pursuant to Title 18, United
               States Code, Section 3582(c), of any sentence within or below the
               Stipulated Guidelines Range of 360 months’ to life imprisonment,
               and (ii) that the Government will not appeal any sentence within or
               above the Stipulated Guidelines Range. This provision is binding
               on the parties even if the Court employs a Guidelines analysis
               different from that stipulated to herein. Furthermore, it is agreed
               that any appeal as to the defendant’s sentence that is not foreclosed
               by this provision will be limited to that portion of the sentencing
               calculation that is inconsistent with (or not addressed by) the above
               stipulation. The parties agree that this waiver applies regardless of
               whether the term of imprisonment is imposed to run consecutively
               to or concurrently with the undischarged portion of any other
               sentence of imprisonment that has been imposed on the defendant
               at the time of sentencing in this case. The defendant further agrees
               not to appeal any term of supervised release that is less than or
               equal to the statutory maximum. The defendant also agrees not to
               appeal any fine that is less than or equal to $500,000 and the
               Government agrees not to appeal any fine that is greater than or
               equal to $50,000.

Gov’t App’x at 4.

        “It is . . . well established that a knowing and voluntary waiver of the right to appeal is
generally enforceable.” United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (internal
citation omitted). “[E]xceptions to the presumption of the enforceability of a waiver . . . occupy a
very circumscribed area of our jurisprudence.” United States v. Gomez-Perez, 215 F.3d 315, 319



                                                 2
(2d Cir. 2000). One such exception is “where the waiver was not made knowingly, voluntarily,
and competently.” United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017) (internal citation and
quotation marks omitted).

       Lewis primarily argues that the magistrate judge failed to explore the ramifications of his
appellate waiver with him in sufficient detail during his plea colloquy, such that his waiver was
not knowing and voluntary. Having examined the plea colloquy, we disagree. The magistrate
judge went through each part of the waiver with Lewis and asked if he understood, and Lewis
agreed that he understood. The appellate waiver is enforceable.

        Whether an agreement not to appeal from a term of supervised release equal to or less
than the statutory maximum permits an appellate challenge to the conditions of such release need
not be decided in this case because the government has not relied on the appeal waiver provision
of the plea agreement to preclude consideration of the merits of those conditions. Cf. United
States v. Franco, No. 17-891, 2018 WL 2077889 (2d Cir. May 4, 2018) (summary order).

        On the merits, Lewis’s challenge to his conditions of supervised release fail. The
judgment’s specification that the probation officer would determine the amount of co-payment
for the cost of treatment was an administrative implementation of the oral sentence, and was
valid, see United States v. Bull, 214 F.3d 1275, 1278-79 (2d Cir. 2000). Also valid was the
condition that the Appellant respond truthfully to inquiries from the probation officer. See United
States v. Johnson, 446 F.3d 272, 278 (2d Cir. 2006). That condition need not be accompanied by
a caveat concerning the availability of a self-incrimination privilege.

       We have considered the remainder of Lewis’s arguments and find them to be without
merit. Accordingly, the appeal hereby is DISMISSED in part and AFFIRMED in part.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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