         09-2933-cr
         USA v. Vasconcellos (Blackmore)


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .


 1            At a stated term of the United States Court of                                      Appeals
 2       for the Second Circuit, held at the Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 12 th day of November, two thousand                                    and ten.
 5
 6       PRESENT: J OSEPH M. M CL AUGHLIN,
 7                B ARRINGTON D. P ARKER,
 8                R ICHARD C. W ESLEY,
 9
10                                       Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18                       -v.-                                                   09-2933-cr
19
20       ANTHONY B. BLACKMORE,
21
22                                       Defendant-Appellant.
23
24
25
 1   FOR APPELLANT:    STEVEN Y. YUROWITZ, New York, NY
 2
 3   FOR APPELLEE:     RAJIT S. DOSANJH, Assistant United States
 4                     Attorney (Daniel Hanlon, Assistant United
 5                     States Attorney, on the brief), for
 6                     Richard S. Hartunian, United States
 7                     Attorney for the Northern District of New
 8                     York, Syracuse, NY.
 9
10        Appeal from the United States District Court for the
11   Northern District of New York (Sharpe, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that this appeal is DISMISSED.

15       Defendant-Appellant Anthony B. Blackmore (“Appellant”)

16   appeals from a judgment of conviction entered on June 16,

17   2009, in the United States District Court for the Northern

18   District of New York (Sharpe, J.).    Pursuant to a plea

19   agreement, Appellant pleaded guilty to one count of

20   possession with intent to distribute crack cocaine in

21   violation of 21 U.S.C. § 841(a)(1).    In his plea agreement,

22   Appellant agreed, inter alia, to waive his right to appeal

23   any sentence of 87 months or less.    Appellant was sentenced

24   to 70 months’ imprisonment.   This sentence was at the low

25   end of the applicable Guidelines range.    We assume the

26   parties’ familiarity with the underlying facts, the

27   procedural history, and the issues presented for review.

28       Appellant argues that his appeal waiver is void because


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1    the district court refused to exercise its discretion under

2    Kimbrough v. United States, 552 U.S. 85 (2007), to impose a

3    non-Guidelines sentence based on the cocaine base/cocaine

4    powder disparity contained in the Guidelines.    We disagree.

5        Generally, “a defendant’s knowing and voluntary waiver

6    of his right to appeal a sentence within an agreed guideline

7    range is enforceable.”    United States v. Rosa, 123 F.3d 94,

8    97 (2d Cir. 1997).    In some circumstances, however, a waiver

9    of appellate rights will be unenforceable, such as “when the

10   waiver was not made knowingly, voluntarily, and competently,

11   when the sentence was imposed based on constitutionally

12   impermissible factors, such as ethnic, racial or other

13   prohibited biases, when the government breached the plea

14   agreement, or when the sentencing court failed to enunciate

15   any rationale for the defendant’s sentence, thus amounting

16   to an abdication of judicial responsibility subject to

17   mandamus.”    United States v. Gomez-Perez, 215 F.3d 315, 319

18   (2d Cir. 2000) (internal citations and quotation marks

19   omitted).    These exceptions are circumscribed, however, and

20   we have “upheld waiver provisions even in circumstances

21   where the sentence was conceivably imposed in an illegal

22   fashion or in violation of the Guidelines, but yet was still


                                    3
1    within the range contemplated in the plea agreement.”     Id.

2        We see no reason on this record to ignore the waiver

3    contained in Appellant’s plea agreement.    Appellant’s

4    sentence is below 87 months and is within the range

5    contemplated by the plea agreement.   Further, there is no

6    indication that the waiver was not made knowingly or

7    voluntarily.   Finally, contrary to Appellant’s contention,

8    the record unambiguously establishes that the district court

9    understood its discretion under Kimbrough to lower

10   Appellant’s sentence in light of the crack/powder disparity.

11   The court explicitly chose not to exercise that discretion

12   and went on to conclude that in light of Appellant’s conduct

13   and criminal history, a sentence at the low end of the

14   Guidelines range was reasonable.   The district court did not

15   treat the Guidelines as mandatory by concluding that it was

16   inappropriate in this instance to exercise the discretion

17   afforded under Kimbrough.

18       Appellant waived his right to appeal.    Consequently,

19   his appeal is barred.   We have considered Appellant’s other

20   arguments on appeal and find them to be without merit.

21       For the foregoing reasons, this appeal is DISMISSED.

22


                                   4
1
2   FOR THE COURT:
3   Catherine O’Hagan Wolfe, Clerk
4
5




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