14-4480-cr
United States v. Rogers

                               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
22nd day of February, two thousand sixteen.

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            ROBERT D. SACK,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                          v.                                                 14-4480-cr

FRANK ROGERS,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:         Marshall Aron Mintz, Mintz & Oppenheim LLP, New York, NY.

Appearing for Appellee:          Carla B. Freedman and Steven D. Clymer, Assistant United States
                                 Attorneys, for Richard S. Hartunian, United States Attorney for the
                                 Northern District of New York, Syracuse, NY.

Appeal from the United States District Court for the Northern District of New York (Suddaby,
C.J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Frank Rogers appeals from the December 1, 2014 judgment of the United States District
Court for the Northern District of New York (Suddaby, C.J.). The district court sentenced Rogers
principally to 220 months’ imprisonment. On appeal, Rogers argues that the district court erred
in sentencing him as a career offender. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

         We conclude, on the basis of the record in this case, that Rogers has waived his present
contention that the district court’s sentencing him as a career offender was error. Waiver is the
“intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S.
725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). “Deviation from a legal
rule is ‘error’ unless the rule has been waived.” Id. at 732-33 (emphasis added). If “a particular
right is waivable,” and if the defendant “knowingly and voluntarily” makes the choice to forgo
that right, the right is “extinguish[ed],” and the court’s decision made in accordance with that
choice “is not error.” Id. at 733 (internal quotation marks omitted) (emphasis added). Where a
defendant “has waived—that is, intentionally relinquished or abandoned, id. at 733, [his] right
to” dispute the ruling challenged on appeal, “there [was] no error at all and plain-error analysis
would add nothing.” Puckett v. United States, 556 U.S. 129, 138 (2009) (first emphasis in
original; second emphasis added).

         In the present case, Rogers not only did not object to his classification as a career
offender, he expressly conceded that classification. At sentencing, his attorney, while urging the
district court to impose a lenient sentence on the ground that Rogers was not yet 18 years old at
the time of his two prior qualifying convictions, said “[t]echnically the Presentence Report is
correct, he is a career offender.” App’x at 81. Accordingly, Rogers waived his right to dispute his
classification as a career offender. We have considered Rogers’s other arguments and find them
to be without merit. The judgment of the district court is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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