     14-2812(L)
     United States v. Raddy Breton

                         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 ASUMMARY 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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   22nd day of December, two thousand sixteen.
 5
 6   PRESENT: RALPH K. WINTER, JR.,
 7            DENNIS JACOBS,
 8            JOSÉ A. CABRANES,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - -X
12   UNITED STATES OF AMERICA,
13            Appellee,
14
15                -v.-                                     14-2812(L)
16
17   RADDY BRETON,
18            Defendant-Appellant.
19
20   - - - - - - - - - - - - - - - - - -X
21
22   FOR APPELLANT:                                 Malvina Nathanson, New York,
23                                                  NY.
24
25   FOR APPELLEE:                                  Kevin Trowel and David C.
26                                                  James, Assistant United
27                                                  States Attorneys, for Robert


                                                1
 1                                      L. Capers, United States
 2                                      Attorney for the Eastern
 3                                      District of New York,
 4                                      Brooklyn, NY.
 5
 6        Appeal from a judgment of the United States District Court
 7   for the Eastern District of New York (Irizarry, C.J.).

 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 9   DECREED that the sentence of the district court be AFFIRMED in
10   part and VACATED and REMANDED in part.

11        Defendant Raddy Breton, who pleaded guilty to attempted
12   possession of methylone with intent to distribute in violation
13   of 21 U.S.C. §§ 846, 841(b)(1)(C), appeals from the supervised
14   release component of his sentence. A separate pro se brief
15   challenges the validity of his plea. We assume the parties’
16   familiarity with the underlying facts, the procedural history,
17   and the issues presented for review.

18        1. Breton argues -- and the government agrees -- that the
19   district court committed plain error by calculating his
20   Guidelines range for the term of supervised release to be three
21   years to life. Taking into proper account U.S.S.G. § 5D1.2 and
22   the safety valve relief available under 18 U.S.C. § 3553(f),
23   the correct Guidelines range for Breton’s supervised release
24   term is one to three years.1 See U.S.S.G. § 5D1.2(a)(2). The
25   miscalculation of the Guidelines range was plain error.
26   Molina-Martinez v. United States, 136 S. Ct. 1338, 1349 (2016)
27   (observing that “a defendant sentenced under an incorrect
28   Guidelines range should be able to rely on that fact to show

     1
       Although the statutory range of supervised relief for Breton
     under 21 U.S.C. § 841(b)(1)(C) is three years to life,
     Application Note 2 of U.S.S.G. § 5D1.2, which was not brought
     to the district court’s attention, provides that defendants
     (like Breton) who qualify for safety valve relief under 18
     U.S.C. § 3553(f) are “not subject to any statutory minimum
     sentence of supervised release,” and are subject to U.S.S.G.
     § 5D1.2(a) (which provides for a Guidelines range of one to three
     years’ supervised release for defendants, like Breton, who
     committed a Class C felony).
                                    2
 1   a reasonable probability that the district court would have
 2   imposed a different sentence under the correct range” and that
 3   “[t]hat probability is all that is needed to establish an effect
 4   on substantial rights”); United States v. Dorvee, 616 F.3d 174,
 5   182 (2d Cir. 2010) (“If the district court miscalculates the
 6   typical sentence at the outset, it cannot properly account for
 7   atypical factors and we, in turn, cannot be sure that the court
 8   has adequately considered the §3553(a) factors. That is what
 9   happened here, and constitutes procedural error.”).2
10   Accordingly, we vacate Breton’s five-year term of supervised
11   release and remand for resentencing solely as to this component
12   of the sentence.3

13        2. Breton argues in his pro se brief that his plea was not
14   knowing and voluntary because it was based on his assumption

     2
       Although we may deem an error harmless if “the record indicates
     clearly that the district court would have imposed the same
     sentence in any event,” United States v. Mandell, 752 F.3d 544,
     553 (2d Cir. 2014), the record does not indicate that the
     district court would have arrived at the same term of supervised
     release absent the error. See Molina-Martinez, 136 S. Ct. at
     1348 (stating that “there [was] at least a reasonable
     probability that the District Court would have imposed a
     different sentence” absent the miscalculated Guidelines range
     when the court “said nothing to suggest that it would have
     imposed [the same] sentence regardless of the Guidelines
     range”).
     3
       On remand, the district court is free to impose whatever
     supervised release term it deems justified, including, if
     warranted, the same (above-Guidelines) term of five years.
     Contrary to Breton’s suggestion, 21 U.S.C. § 841(b)(1)(C)’s
     maximum of lifetime supervised release trumps the three-year
     maximum provided under 18 U.S.C. § 3583(b)(2). See 21 U.S.C.
     § 841(b)(1)(C) (providing for a term of supervised release of
     “at least 3 years” -- meaning up to life -- “[n]otwithstanding
     section 3583 of title 18”); see also United States v. Eng, 14
     F.3d 165, 173 (2d Cir. 1994) (holding that 21 U.S.C. §
     841(b)(1)(A)’s provision that a term of supervised release must
     be “at least 5 years” trumps the general provision in 18 U.S.C.
     § 3583(b)(1) that such a term must be “not more than five
     years”).
                                    3
 1   that the district court would calculate his Guidelines
 2   sentencing range by using a 200:1 methylone-to-marijuana
 3   equivalency (instead of the 500:1 ratio it actually used).
 4   However, no promise was made to him regarding the drug ratio
 5   that would be used, and he acknowledged at his plea hearing that
 6   no one could make any promise as to what sentence he would
 7   receive. He was informed that his sentence would be determined
 8   by the district court, which was not bound by the plea agreement,
 9   and he agreed to waive his right to appeal any prison sentence
10   of 97 months or less “without regard to the sentencing analysis
11   used by the [District] Court.”4 Plea Agreement ¶ 4. Thus, the
12   record presents no basis for challenging the knowing and
13   voluntary nature of his plea.

14        Accordingly, the sentence of the district court is hereby
15   AFFIRMED in part and VACATED in part, and the case is REMANDED
16   for further proceedings consistent with this order.

17                                FOR THE COURT:
18                                CATHERINE O’HAGAN WOLFE, CLERK




     4
       Breton was sentenced to 96 months’ imprisonment. A previous
     panel of this Court dismissed Breton’s appeal of his conviction
     and term of imprisonment due to the appeal waiver in his plea
     agreement. To the extent that Breton seeks to challenge that
     ruling, he presents no compelling reasons for doing so.
                                    4
