15-2769-cr
United States v. Rodriguez

                                  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 29th day of August, two thousand sixteen.

PRESENT:            JOHN M. WALKER, JR.,
                    JOSÉ A. CABRANES,
                    RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                             Appellee,                     15-2769-cr

                             v.

EDUAR ARQUETA RODRIGUEZ, ALSO KNOWN AS
EDUARDO RODRIGUEZ, ALSO KNOWN AS EDUAR
AGUETA,

                             Defendant-Appellant.


FOR APPELLEE:                                           CHRISTOPHER C. CAFFARONE (Peter A.
                                                        Norling and Carrie N. Capwell, on the
                                                        brief), Assistant United States Attorneys,
                                                        for Robert L. Capers, United States
                                                        Attorney for the Eastern District of New
                                                        York, Brooklyn, NY.




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FOR DEFENDANT-APPELLANT:                                   YUANCHUNG LEE, Of Counsel, Federal
                                                           Defenders of New York, Inc., Appeals
                                                           Bureau, New York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Joanna Seybert, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and is hereby
AFFIRMED.

        Defendant-appellant Eduar Arqueta Rodriguez (“Rodriguez”) appeals from the District
Court’s August 25, 2015 judgment convicting him, pursuant to a guilty plea, of illegal reentry in
violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The District Court imposed a fifteen-month term of
imprisonment and three years of supervised release. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

        Rodriguez raises two arguments on appeal. The first is that the District Court abused its
discretion in denying Rodriguez’s motion to withdraw his guilty plea prior to his sentencing.
Rodriguez had sought to withdraw his plea on the ground that he was misinformed about his
sentencing exposure. In his view, his maximum sentencing exposure was two years rather than
twenty years because his prior conviction for attempted statutory rape of a minor did not constitute
an aggravated felony under Section 1326(b)(2). The government argues both that this claim is
without merit and that this Court should decline to consider this challenge pursuant to the appeal-
waiver provision of Rodriguez’s plea agreement.

         We agree with the Government that Rodriguez’s appeal of the District Court’s denial of his
motion to withdraw his guilty plea is barred by the appeal-waiver provision of his plea agreement.
“Waivers of the right to appeal a sentence are presumptively enforceable.” United States v. Riggi, 649
F.3d 143, 147 (2d Cir. 2011) (internal quotation marks omitted). We will enforce a waiver of the
right to appeal a sentence only “if the record clearly demonstrates that the waiver was both knowing
(in the sense that the defendant fully understood the potential consequences of his waiver) and
voluntary.” United States v. Coston, 737 F.3d 235, 237 (2d Cir. 2013) (internal quotation marks
omitted). While we will void waivers that “violate certain fundamental rights, other meaningful
errors are insufficient to void an appeal waiver.” Id. (internal quotation marks omitted).

        The plea agreement specifically states that Rodriguez agreed “not to file an appeal or
otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction
or sentence in the event that the Court imposes a term of imprisonment of 24 months or below,”
and states that the waiver was “binding without regard to the sentencing analysis used by the Court.”
Rodriguez received a sentence well under twenty-four months. During the plea colloquy, the District
Court repeatedly advised Rodriguez of the consequences of the waiver provision, to which

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Rodriguez responded “I understand.” Rodriguez further confirmed that he had discussed the waiver
of his right to appeal with his attorney. At the most, Rodriguez entered into the agreement based on
an error of law, not a violation of his fundamental rights. Accordingly, the plea agreement’s appeal-
waiver provision is enforceable and Rodriguez’s appeal of the District Court’s denial of his motion
to withdraw his guilty plea is barred.

         Rodriguez’s second argument on appeal is that his guilty plea was not knowingly and
intelligently entered because the District Court, in violation of Fed. R. Crim. P. 11(b)(1), failed to
inform Rodriguez of several rights that he would be waiving during the plea colloquy. The
Government agrees that this challenge is not waived by the plea agreement, but argues that it is
nonetheless unavailing. See Coston, 737 F.3d at 237. Although we agree, and the Government
concedes, that the plea colloquy did not fully comply with Rule 11, we conclude that Rodriguez
cannot show that any error affected his substantial rights, and therefore find his argument to be
without merit.

         “[T]he Supreme Court has held that” where, as here, “a defendant has failed to object in the
district court to a violation of Rule 11, reversal is appropriate only where the error is plain and
affects the defendant’s substantial rights.” United States v. Pattee, 820 F.3d 496, 503 (2d Cir. 2016)
(citing United States v. Vonn, 535 U.S. 55, 58–59 (2002)). To satisfy this standard, Rodriguez must
“demonstrate that (1) there was error, (2) the error was plain, (3) the error prejudicially affected his
substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of
judicial proceedings.” Id. at 505 (internal quotation marks omitted). With respect to the third prong,
Rodriguez “must show that there is a reasonable probability that, but for the error, he would not
have entered the plea. If the misinformation in all likelihood would not have affected [his] decision-
making calculus, then the error would be harmless, and the guilty plea need not be vacated.” Id.
(citations and internal quotation marks omitted). Importantly, “[w]here a defendant, before
sentencing, learns of information erroneously omitted in violation of Rule 11 but fails to attempt to
withdraw his plea based on that violation, there can be no reasonable probability that, but for
the Rule 11 violation, he would not have entered the plea, and the plain error standard is not
met.” United States v. Tulsiram, 815 F.3d 114, 120 (2d Cir. 2016) (internal quotation marks omitted).

        Rodriguez fails to demonstrate that any of the District Court’s Rule 11 errors affected his
substantial rights and that there was a reasonable probability that he would not have entered his plea
if he had been aware of the rights omitted from the colloquy. The sole basis of Rodriguez’s motion
to withdraw his guilty plea before sentencing was that he no longer believed that his prior conviction
constituted an aggravated felony. He did not seek to withdraw his plea based on any Rule 11
violation arising from the District Court’s omissions during the colloquy. Rodriguez offers no other
support for his claim that he would not have pleaded guilty had the District Court advised him of
the rights he was waiving. Accordingly, the plain error standard is not met.



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                                       CONCLUSION

       We have reviewed all of the arguments raised by Rodriguez on appeal and find them to be
without merit. We thus AFFIRM the August 25, 2015 judgment of the District Court.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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