12-5118-cr
United States v. Cotto

                                      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 January, two thousand fourteen.

PRESENT:

           JOSÉ A. CABRANES,
           REENA RAGGI,
           SUSAN L. CARNEY,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                               -v.-                                                              No. 12-5118-cr

JOSE COTTO,

                      Defendant-Appellant.
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FOR APPELLEE:                                                             Paul D. Silver, Assistant United States
                                                                          Attorney, for Richard S. Hartunian, United
                                                                          States Attorney for the Northern District of
                                                                          New York, Albany, NY.

FOR DEFENDANT-APPELLANT:                                                  Devin McLaughlin, Langrock Sperry & Wool,
                                                                          LLP, Middlebury, VT.




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        Appeal from a judgment, entered December 18, 2012, of the United States District Court
for the Northern District of New York (Thomas J. McAvoy, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that this appeal is DISMISSED.

                                                BACKGROUND

        Defendant Jose Cotto appeals from the judgment of the District Court sentencing him
principally to 120 months’ imprisonment.

        On May 21, 2009, Cotto pleaded guilty, pursuant to a plea agreement, to conspiracy to
distribute and to possess with the intent to distribute more than fifty grams of cocaine base, in the
form of crack cocaine, in violation of 21 U.S.C. § 846. Cotto’s plea agreement waived, in relevant
part, the right “to appeal . . . any sentence of imprisonment, including any related issues with respect
to the establishment of the advisory Sentencing Guidelines range or the reasonableness of the
sentence imposed.”1 Appellant’s App’x 25. As a result, he faced a mandatory minimum term of life
imprisonment. However, the Government moved for a downward departure pursuant to 18 U.S.C. §
3553(e) and U.S.S.G. § 5K1.1. On December 13, 2010, Cotto was sentenced to 180 months’
imprisonment.

        On Cotto’s initial appeal, we granted the Government’s motion to remand to the District
Court for resentencing in accordance with the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372 (“FSA”).

       On December 10, 2012, Cotto was sentenced again. This time, his advisory Guidelines
range was 262 to 327 months’ imprisonment. The Government moved for a downward departure
pursuant to U.S.S.G. § 5K1.1, and the District Court sentenced Cotto principally to a term of
imprisonment of 120 months, the statutory mandatory minimum term.




         1   The waiver reads in full:

         15. Waiver of Appeal and Collateral Attack. The Defendant acknowledges that, after consultation
         with defense counsel, he fully understands the extent of his rights to appeal, and/or to collaterally
         attack the conviction and sentence in this case. The Defendant waives any and all rights, including
         those conferred by 18 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to appeal or collaterally attack his
         conviction and any sentence of imprisonment, including any related issues with respect to the
         establishment of the advisory Sentencing Guidelines range or the reasonableness of the sentence
         imposed.

Appellant’s App’x 25.


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                                             DISCUSSION

       On appeal, Cotto argues that the District Court erred by failing to consider the 18 U.S.C.
§ 3553(a) factors when it resentenced Cotto. Because of the unique history of Cotto’s sentencing,
and because there was “no substantive discussion of the § 3553(a) factors” at the second sentencing,
Cotto asks us to infer that the District Court did not in fact consider them. This argument,
however, is foreclosed by Cotto’s waiver of appeal in his plea agreement.

        “Waivers of the right to appeal a sentence are presumptively enforceable” and we have
“repeatedly upheld the validity of appeal waivers if they are knowingly, voluntarily, and competently
provided by the defendant.” United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (internal
quotation marks and alterations omitted).

        The parties do not dispute that Cotto made a knowing, voluntary, and competent waiver of
his appellate rights. Nor could they: The District Court clearly addressed the waiver at the time of
Cotto’s plea, and Cotto confirmed that he understood the rights he was giving up and he was doing
so voluntarily. The District Court also reminded Cotto of his waiver at both of the sentencing
proceedings.

        Here, Cotto does not even acknowledge the waiver in his brief or argue that it is for some
reason unenforceable. And on an independent review, there is nothing in the record to suggest that
“the sentence was reached in a manner that the plea agreement did not anticipate” or that
“enforcing [Cotto’s] waiver would violate his more fundamental rights,” both of which might void
an appeal waiver. United States v. Coston, 737 F.3d 235, 237–38 (2d Cir. 2013) (citations omitted). In
the absence of these, “other meaningful errors are insufficient to void an appeal waiver.” Riggi, 649
F.3d at 147; see also United States v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011) (appeal waiver precluded
appellate review of district court’s failure to follow procedural requirements related to the
imposition of his sentence); United States v. Arevalo, 628 F.3d 93, 97 (2d Cir. 2010) (“Because the
conduct [defendant] challenges . . . was clearly part of the sentencing phase of [his] case,
[defendant’s] challenge is within the scope of his appeal waiver and is foreclosed.”).

       Accordingly, we conclude that Cotto’s waiver of his appellate rights is enforceable and, in the
circumstances presented here, forecloses him from appealing his sentence.




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                                       CONCLUSION

       We have considered Cotto’s remaining arguments on appeal and find them to be without
merit. For the reasons set out above, this appeal is DISMISSED.



                                           FOR THE COURT,
                                           Catherine O’Hagan Wolfe, Clerk of Court




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