         10-2699-cr
         United States v. Peele

                                 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.


 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 15th day of October, two thousand and
 5       twelve.
 6
 7       PRESENT: ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      v.                                           10-2699-cr
19
20       LUKUAN PEELE,
21
22                                     Defendant-Appellant.1
23
24
25       FOR APPELLANT:                DONNA R. NEWMAN, Buttermore Newman
26                                     Delanney & Foltz, LLP, New York, NY.
27
28       FOR APPELLEE:                 JOSEPH H. KARASZEWSKI, Assistant United
29                                     States Attorney for the Western District
30                                     of New York, Buffalo, NY (William J.

                1
              The Clerk of the Court is directed to correct the
         caption as reflected above.
 1                     Hochul, Jr., United States Attorney for
 2                     the Western District of New York, on the
 3                     brief).
 4
 5
 6        Appeal from the United States District Court for the
 7   Western District of New York (Siragusa, J.).
 8
 9       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

10   AND DECREED that this appeal is DISMISSED in part and the

11   judgment of the district court AFFIRMED in part.

12       Defendant-Appellant Lukuan Peele appeals from a

13   judgment of the United States District Court for the Western

14   District of New York (Siragusa, J.) sentencing him to a

15   below guidelines term of imprisonment of 288 months, a

16   $2,000 fine, and a five-year term of supervised release.    We

17   assume the parties’ familiarity with the underlying facts,

18   the procedural history, and the issues presented for review.

19       On March 23, 2007, Peele negotiated a plea agreement

20   whereby he avoided a possible 30 year minimum sentencing

21   exposure for two gun related offenses with his promise that,

22   inter alia, he would not appeal a sentence for a drug

23   offense within a 292-365 month range.   Peele received a 288

24   month sentence and, despite his promise to the contrary, now

25   appeals that sentence.

26       Peele asserts that his waiver is invalid because the


                                  2
 1   2009 edition of the Sentencing Guidelines were used in his

 2   sentencing calculations instead of the 2006 edition.     We

 3   conclude that the appeal waiver is valid because he received

 4   the benefit of his bargain.

 5          An appeal waiver is presumptively valid and

 6   enforceable.     United States v. Arevalo, 628 F.3d 93, 98 (2d

 7   Cir. 2010).    “We have repeatedly upheld the validity of

 8   [appeal] waivers if they are knowingly, voluntarily, and

 9   competently provided by the defendant.”     United States v.

10   Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (internal quotation

11   marks omitted).     While violations of fundamental rights

12   warrant voiding appeal waivers, other meaningful errors do

13   not.    Id.   “We have enforced waivers where a sentence was

14   arguably imposed contrary to a statutory requirement.”        Id.

15          The waiver stands if Peele understood the consequences

16   of his bargain, “both in terms of what he was gaining and

17   what he was giving up” and the sentencing court did not

18   abdicate judicial responsibility.     United States v.

19   Woltmann, 610 F.3d 37, 40 (2d Cir. 2010) (internal quotation

20   marks and citation omitted).     “A mutual mistake concerning

21   the proper Guidelines range is an insufficient basis to void

22   a plea agreement.”     Riggi, 649 F.3d at 149.


                                     3
 1       Here, Peele stipulated that (1) he understood that the

 2   court must consider, but is not bound by the Sentencing

 3   Guidelines, (2) the Sentencing Guidelines range set forth in

 4   the agreement was correct, and (3) notwithstanding the

 5   manner in which the court determines the sentence, he waived

 6   his right to appeal a sentence or collaterally attack any

 7   component of a sentence imposed by the court which falls

 8   within the stipulated range of 292-365 months.   Because the

 9   parties did not stipulate to the edition of the Guidelines

10   that the parties were using, Riggi is not dispositive here.

11       But, because the sentence was within the range

12   stipulated, we hold that the waiver is valid. Moreover,

13   Peele stipulated that he understood that “the Court is not

14   bound to accept any Sentencing Guidelines calculations set

15   forth in this agreement and the defendant will not be

16   entitled to withdraw the plea of guilty based on the

17   sentence imposed by the court.”   (JA 34.)   “An agreement

18   that has made such express provisions with respect to the

19   possibility of a mistaken prediction as to sentencing

20   calculations is not a proper candidate for recision on the

21   ground of mutual mistake when that possibility has come to

22   fruition.”   United States v. Rosen, 409 F.3d 535, 548 (2d


                                   4
 1   Cir. 2005).

 2       Peele’s ineffective assistance of counsel claim merits

 3   our review because the alleged ineffectiveness reflects on

 4   the voluntary nature of his plea.   See Parisi v. United

 5   States, 529 F.3d 134, 138-39 (2d Cir. 2008).   As Peele

 6   admitted in both his brief and at oral argument, the one-

 7   book rule would have resulted in a sentencing range that

 8   included the term of imprisonment that Peele actually

 9   received.   We therefore reject Peele’s ineffective

10   assistance of counsel claim for want of prejudice.    See

11   United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998).

12   Because the sentence that Peele would have received is below

13   the cap stipulated in the plea agreement and within the

14   range that he would have been given under the 2006

15   guidelines, Peele’s Ex Post Facto Clause claims are also

16   without merit.

17       We have considered Peele’s remaining arguments and,

18   after a thorough review of the record, find them to be

19   without merit

20       For the foregoing reasons, the appeal is DISMISSED in

21   part and judgment of the district court is AFFIRMED in part.

22
23                               FOR THE COURT:

                                   5
1   Catherine O’Hagan Wolfe, Clerk
2
3   By:




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