     14-3070
     United States v. Mejias


                               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 TO 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 the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 1st day of July, two thousand fifteen.
 4
 5   PRESENT:
 6               DENNIS JACOBS,
 7               GUIDO CALABRESI,
 8               GERARD E. LYNCH,
 9                     Circuit Judges.
10   _____________________________________
11
12   United States of America,
13
14                              Appellee,
15
16                      v.                                                 14-3070
17
18   Brandon Mejias,
19
20                     Defendant-Appellant.
21   _____________________________________
22
23   FOR APPELLANT:                                   Brandon Mejias, pro se, Gilmer, West
24                                                    Virginia.
25
26   FOR APPELLEE:                                    Jo Ann M. Navickas, Nathan D. Reilly, for
27                                                    Kelly T. Currie, Acting United States
28                                                    Attorney for the Eastern District of New
29                                                    York, Brooklyn, New York.
30
 1          Appeal from an order of the United States District Court for the Eastern District of New

 2   York (Amon, C.J.).


 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the order of the district court is AFFIRMED.

 5          Brandon Mejias appeals pro se from a July 8, 2014 district court order denying his motion

 6   to modify his sentence pursuant to 18 U.S.C. § 3582(c)(1)(B). Mejias pleaded guilty before the

 7   district court, pursuant to a plea agreement waiving his right to appeal or collaterally attack his

 8   sentence. The waiver was knowing and voluntary, and by its express terms barred any future

 9   collateral attacks upon his term of imprisonment if he was sentenced at or below 120 months’

10   imprisonment. He was sentenced to 87 months. While plea agreements are “applied narrowly

11   and construed strictly against the Government,” United States v. Hernandez, 242 F.3d 110, 113 (2d

12   Cir. 2001) (internal quotation marks omitted), a defendant’s knowing and voluntary waiver of the

13   right to collaterally challenge a sentence is enforceable, see Tellado v. United States, 745 F.3d 48,

14   53 (2d Cir. 2014).

15          Mejias asked the district court to reduce his sentence because, he contended, in imposing

16   sentence the district court had failed to consider a policy statement within the U.S. Sentencing

17   Guidelines, in violation of 18 U.S.C. § 3553(a)(5). It is questionable whether such an application

18   is permitted by § 3582(b)(1)(B), see United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001);

19   United States v. Barragan-Mendoza, 174 F.3d 1024, 1028-29 (9th Cir. 1999); but even if such an

20   application is permitted, that attack on the validity of the original sentence is precisely the sort of

21   collateral attack on a sentence that Mejias waived as part of his plea agreement. Because Mejias’s

22   motion was barred by his valid plea waiver, the district court did not err in denying it.

                                                       2
23   Accordingly, the order of the district court is AFFIRMED.

24                                      FOR THE COURT:
25                                      Catherine O=Hagan Wolfe, Clerk




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