07-5750-cr(L), 08-0965-cr(CON)
United States v. Gonzalez (Lomeli)


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                        AMENDED SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED B Y THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TO GETH ER W ITH THE PAPER IN
W H ICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS A VAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
O F TH E O RDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 16 th day of December, two thousand nine.

PRESENT:
                     ROGER J. MINER,
                     ROBERT A. KATZMANN,
                     GERARD E. LYNCH,*
                                     Circuit Judges.


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UNITED STATES OF AMERICA,

                                             Appellee,
                                v.                                    Nos. 07-5750-cr(L)
                                                                           08-0965-cr(CON)

FRANCISCO JAVIER CASTRO LOMELI,
JAMIE HUMBERTO GUTIERREZ-GONZALEZ,

                                             Defendants-Appellants,


          *
        At the time the case was argued, Judge Lynch was United States District Judge for
the Southern District of New York, sitting by designation.
NELSON HERNAN GARCIA,

                                         Defendant.**

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For Defendant-Appellant
Francisco Javier Castro Lomeli:                   Allan P. Haber, New York, NY

For Defendant-Appellant
Jamie Humberto Gutierrez-Gonzalez:                B. Alan Seidler, New York, NY

For Appellee                                      Brendan R. McGuire (Andrew L. Fish, on the
United States of America:                         brief), Assistant United States Attorneys, for Lev.
                                                  L. Dassin, Acting United States Attorney for the
                                                  Southern District of New York, New York, NY


                                        SUMMARY ORDER

        ON CONSIDERATION, it is ORDERED, ADJUDGED, and DECREED that

we hereby withdraw and vacate the previous order in this case, entered on September 23,

2009. And it is hereby further ORDERED, ADJUDGED, and DECREED that the

judgment of the district court as to defendant-appellant Jaime Humberto Gutierrez-

Gonzales be and hereby is vacated and remanded for further proceedings, and that the

appeal of defendant-appellant Francisco Javier Castro Lomeli be and hereby is dismissed.

        Defendants-appellants Francisco Javier Castro Lomeli and Jamie Humberto

Gutierrez-Gonzalez (“Gutierrez”) appeal from the judgments of the district court dated

December 18, 2007, and February 19, 2008, respectively. The district court sentenced

Lomeli principally to 108 months’ imprisonment and Gutierrez principally to 135 months’



        **
          The Clerk of the Court is respectfully directed to amend the official caption to
conform to the caption of this order.

                                                     2
imprisonment. We assume the parties’ familiarity with the facts, procedural history, and

specification of issues on appeal.

       Lomeli’s appeal, which challenges the substantive unreasonableness of his

sentence, must be dismissed because he waived his right to appeal in the plea agreement

he entered into with the government. The wavier provision states that “the defendant will

not file a direct appeal [of] . . . any sentence within or below the Stipulated Guidelines

Range [of 135 to 168 months’ imprisonment].” “This waiver is in a familiar form that we

have consistently held enforceable” as long as the wavier is “knowing and voluntary.”

See United States v. Roque, 421 F.3d 118, 121-22 (2d Cir. 2005). The colloquy at

Lomeli’s plea proceeding “adequately establishes that [Lomeli] understood the terms of

his waiver in the plea agreement,” see United States v. DeJesus, 219 F.3d 117, 121 (2d

Cir. 2000) (per curiam), and Lomeli does not point to anything showing that the wavier

was not otherwise voluntary. Because Lomeli was sentenced to 108 months, a sentence

below the range stipulated in the plea agreement, he has waived his right to appeal and his

appeal must be dismissed.

       Gutierrez raises two separate issues on appeal. First, he argues that there was no

factual basis for his guilty plea to a charge of conspiracy to commit money laundering;

second, he argues that the district court erred in finding that he was not entitled to a

reduction in his offense level because he was a minor participant in the offense.

       Gutierrez’s claim regarding the sufficiency of his plea allocution is very similar to

that of his co-defendant, Nelson Hernan Garcia. We recently vacated and remanded


                                               3
Garcia’s plea. See United States v. Garcia, __ F.3d __, 2009 WL 4254582 (2d Cir. Dec.

1, 2009). Accordingly, we vacate the judgment as to Gutierrez and remand the matter to

the District Court for further consideration in light of Garcia, which of course was

unavailable to the district court when Gutierrez proffered his plea.

       Because we vacate the plea as it relates to one count of conviction, we refrain from

passing on Gutierrez’s sentencing contention at this time.

       For the foregoing reasons, the judgment of the district court as to defendant-

appellant Jamie Humberto Gutierrez-Gonzales is VACATED and his case is remanded

for further proceedings, and the appeal of defendant-appellant Francisco Javier Castro

Lomeli is DISMISSED.




                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court


                                   By:




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