     11-1698-cr
     United States v. Brickhouse

                          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 4th day of April, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               11-1698-cr
17
18       RICKY J. BRICKHOUSE,
19                Defendant-Appellant,
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        FRANCISCO E. CELEDONIO, Law
23                                             Office of Francisco E.
24                                             Celedonio, Esq., New York, New
25                                             York.
26
27       FOR APPELLEE:                         NICHOLAS L. MCQUAID (Katherine
28                                             Polk Failla, on the brief),

                                                  1
 1                              Assistant United States
 2                              Attorneys, for Preet Bharara,
 3                              United States Attorney for the
 4                              Southern District of New York,
 5                              New York, New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Southern District of New York (Karas, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that this appeal from the judgment of the
12   district court be DISMISSED.
13
14        Ricky J. Brickhouse appeals from the judgment of the
15   United States District Court for the Southern District of
16   New York (Karas, J.), sentencing him to 120 months’
17   imprisonment for conspiracy to distribute crack cocaine and
18   to 84 months’ imprisonment, to be served concurrently, for
19   distribution and possession with intent to distribute crack
20   cocaine. We assume the parties’ familiarity with the
21   underlying facts, the procedural history, and the issues
22   presented for review.
23
24        As an initial matter, the prior decision by a motions
25   panel of this Court to deny the government’s motion to
26   dismiss this appeal on the basis of Brickhouse’s appeal
27   waiver (see Mot. Order, United States v. Brickhouse, No. 11-
28   1698 (Dkt. No. 83) (Aug. 15, 2012)) is not binding on the
29   merits panel. See Rezzonico v. H&R Block, Inc., 182 F.3d
30   144, 149 (2d Cir. 1999).
31
32        Brickhouse agreed to waive his right to appeal if he
33   was sentenced to a prison term of 150 months or less, as he
34   was. The colloquy at Brickhouse’s plea hearing makes clear
35   that the appeal waiver was knowing and voluntary (see Plea
36   Hr’g Tr. 36-38 (Sept. 10, 2010)), and such a waiver is not
37   contrary to public policy. Brickhouse’s appeal waiver was
38   valid when his plea was entered, and the waiver did not lose
39   its effectiveness when the district court in a subsequent
40   proceeding made statements arguably inconsistent with that
41   waiver. No justifiable reliance could have been placed on
42   such post-plea statements. See United States v. Fisher, 232
43   F.3d 301, 304-05 (2d Cir. 2000).
44

                                  2
 1        Even though the Supreme Court has since determined, in
 2   Dorsey v. United States, 132 S. Ct. 2321 (2012), that the
 3   Fair Sentencing Act of 2010 may apply retroactively to
 4   criminal conduct completed before the Act’s effective date,
 5   the change in law does not render Brickhouse’s appellate
 6   waiver unenforceable. See United States v. Harrison, 699
 7   F.3d 158, 159 (2d Cir. 2012); United States v. Lee, 523 F.3d
 8   104, 107 (2d Cir. 2008).
 9
10        For the foregoing reasons, and finding no merit in
11   Brickhouse’s other arguments, we DISMISS the appeal.
12
13                              FOR THE COURT:
14                              CATHERINE O’HAGAN WOLFE, CLERK
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