06-4933-cr
U.S.A. v. Lee


                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                    August Term, 2007

 (Submitted: April 11, 2008                                                         Decided: April 17, 2008)

                                                  Docket No. 06-4933-cr

 UNITED STATES OF AMERICA,

                   Appellee,

                   v.

 CATHY LEE,

                   Defendant-Appellant.


 Before: CABRANES and WESLEY, Circuit Judges, and Castel, District Judge.*

          Appeal from a judgment of conviction entered by the U.S. District Court for the Eastern

 District of New York (Arthur D. Spatt, Judge). The United States moved to dismiss the appeal on the

 ground that, pursuant to a plea agreement, appellant waived her right to file an appeal. We conclude

 that Lee’s waiver of her right to appeal her sentence is valid and therefore grant the government’s

 motion to dismiss.

          Dismissed.

                                               Benton J. Cambell, U.S. Attorney for the Eastern District of
                                                      New York (Peter A. Norling, Susan Corkery, Assistant
                                                      U.S. Attorneys, on the brief), Brooklyn, NY, for Appellee
                                                      United States of America.




          *
             The Honorable P. Kevin Castel, of the United States District Court for the Southern District of New
 York, sitting by designation.

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                                       Laurie S. Hershey, Manhasset, NY, for Defendant-Appellant Cathy
                                               Lee.

JOSÉ A. CABRANES, Circuit Judge:

       Defendant-Appellant Cathy Lee appeals from a judgment of conviction entered by the U.S.

District Court for the Eastern District of New York (Arthur D. Spatt, Judge). Lee pleaded guilty,

pursuant to a plea agreement, to one count of possession with intent to distribute fifty grams or more

of cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). On appeal, she contends

that her sentence of 120 months’ incarceration—the mandatory minimum sentence associated with her

offense of conviction—violates 18 U.S.C. § 3553(a), the requirement that a sentence be reasonable, her

right to equal protection under the law, and the Eighth Amendment’s ban on cruel and unusual

punishment, in light of the disparity between the quantities of powder cocaine and crack cocaine

necessary to trigger this mandatory minimum sentence. The government, noting that Lee signed a plea

agreement in which she agreed “not [to] file an appeal or otherwise challenge the conviction or

sentence in the event that the Court imposes a term of imprisonment of 188 months or below,” moves

to dismiss Lee’s appeal. For the reasons set forth below, we agree that Lee has waived her appeal rights

and therefore dismiss her appeal.

                                             DISCUSSION

       The sole issue raised by Lee on appeal concerns the disparity—a 100:1 ratio—between the

quantity of powder cocaine and crack cocaine necessary to trigger a statutory ten-year mandatory

minimum sentence. She does not otherwise contest the validity of her plea agreement, conviction or

sentence. The government has moved to dismiss Lee’s appeal in light of her agreement to not appeal a

sentence of imprisonment less than or equal to 188 months and her receipt of a sentence of

imprisonment of only 120 months.


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        As we have previously recognized, “[i]t is . . . well-settled that a defendant’s knowing and

voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable.”

United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998). We have nevertheless recognized an exception

to that general proposition when the court’s “arguably unconstitutional” consideration of a factor, such

as status as a naturalized citizen, is alleged to have influenced sentencing. United States v. Jacobson, 15

F.3d 19, 23 (2d Cir. 1994); see also United States v. Johnson, 347 F.3d 412, 419 (2d Cir. 2003) (indigency);

United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). Lee contends that her appeal falls within

that exception because race-based discrimination affected her sentence. She does not allege, however,

that the District Court considered her race—or any other suspect factor—when imposing sentence; nor

is there any evidence whatsoever in the record that would support such an allegation. Instead, Lee

argues that the statutory minimum sentence is itself discriminatory because the disparity between the

quantities of powder cocaine and crack cocaine that trigger it has an adverse racial impact. This

allegation, which has no bearing on whether the District Court considered an impermissible factor

when imposing sentence, does not fall within the waiver exception outlined above for appeals claiming

that bias influenced a sentencing court’s decision; nor does it present any other compelling reason for

us to deem Lee’s appeal waiver unenforceable. Accordingly, we find Lee’s waiver valid and

enforceable.

        In any event, we have already rejected Lee’s equal-protection challenge to the powder cocaine–

crack cocaine disparity embodied in an Act of Congress. See United States v. Stevens, 19 F.3d 93, 97 (2d

Cir. 1994) (“Because we believe that treatment of one gram of crack cocaine as the equivalent of 100

grams of powder cocaine is rationally related to the legitimate governmental purpose of protecting the

public against the greater dangers of crack cocaine, we reject [the] equal protection challenge to this

sentencing scheme.”). Lee argues that the legal landscape has changed since we decided Stevens, relying

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on the Supreme Court’s recent decision that judges “may consider the disparity between the Guidelines’

treatment of crack and powder cocaine offenses” when imposing sentence. Kimbrough v. United States,

128 S. Ct. 558, 564 (2007) (emphasis added). It is not apparent to us that the principles set forth in

Kimbrough have any application to mandatory minimum sentences imposed by statute.

        Even if they did, however, Lee would not be able to benefit from this new precedent. As we

held in United States v. Morgan, a defendant’s “inability to foresee that subsequently decided cases would

create new appeal issues does not supply a basis for failing to enforce an appeal waiver. On the

contrary, the possibility of a favorable change in the law after a plea is simply one of the risks that

accompanies pleas and plea agreements.” 406 F.3d 135, 137 (2d Cir. 2005) (footnotes omitted). In

United States v. Roque, we applied this principle to a claim arising from the Supreme Court’s then-recent

decision, in United States v. Booker, 543 U.S. 220 (2005), that the U.S. Sentencing Guidelines were

advisory rather than mandatory. 421 F.3d 118 (2d Cir. 2005). We held that “an otherwise valid plea

agreement and waiver of right to appeal sentence, entered into before [Booker], is enforceable even if the

parties, at the time they entered into the agreement, erroneously believed that the United States

Sentencing Guidelines were mandatory rather than advisory.” Id. at 124. That reasoning would apply

equally to any impact Kimbrough may have on Lee’s sentence; therefore, neither Kimbrough nor any other

legal “developments” constitute grounds for finding Lee’s appeal waiver unenforceable.

                                             CONCLUSION

        For the reasons stated above, we conclude that the appeal waiver set forth in Lee’s plea

agreement is valid and enforceable. The appeal is therefore DISMISSED.




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