         11-2120-cr
         United States v. Britton

                                 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 16th day of May, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges,
 9                J. GARVAN MURTHA,
10                         District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                     Appellee,
17
18                      -v.-                                                11-2120-cr
19
20       RONALD BRITTON,
21
22                                     Defendant-Appellant,
23
24       DEVON JOHNSON, JERMEL PERINEAU, JOSEPH
25       GUERINO, AKA GUERINO JOSEPH,
26
27                                     Defendants.
28
29
30

                *
                The Honorable J. Garvan Murtha, of the United States District Court for
         the District of Vermont, sitting by designation.
 1   FOR APPELLANT:      Sally Wasserman, Law Office of Sally
 2                       Wasserman, New York, NY.
 3
 4   FOR APPELLEE:       Zainab Ahmad, Assistant United States
 5                       Attorney (Emily Berger, Assistant United
 6                       States Attorney, on the brief), for
 7                       Loretta E. Lynch, United States Attorney
 8                       for the Eastern District of New York,
 9                       Brooklyn, NY.
10
11        Appeal from the United States District Court for the
12   Eastern District of New York (Vitaliano, J.).
13
14       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the United States District

16   Court for the Eastern District of New York be AFFIRMED.

17       Appellant Ronald Britton appeals from a judgment of the

18   United States District Court for the Eastern District of New

19   York (Vitaliano, J.), which sentenced Britton to 180 months’

20   incarceration on his plea of guilty to robbery conspiracy in

21   violation of 18 U.S.C. § 1951(a) and use of a firearm during

22   a crime of violence in violation of 18 U.S.C. §

23   924(c)(1)(A)(ii).   The district court also imposed a

24   restitution order of $49,450.       We assume the parties’

25   familiarity with the underlying facts, the procedural

26   history, and the issues presented for review.

27       Britton raises three issues on appeal.       He argues that

28   (1) the district court committed reversible error in

29   including two New York juvenile delinquency adjudications

                                     2
1    when calculating Britton’s criminal history category; (2)

2    this Court should vacate his sentence because the government

3    miscalculated the applicable offense level under the United

4    States Sentencing Guidelines (“the Guidelines”) in its plea

5    agreement with Britton, thus exposing Britton to a

6    substantially higher sentence than he had contemplated when

7    pleading guilty; and (3) this Court should vacate the

8    restitution order imposed on Britton because the district

9    court failed to take into account Britton’s financial

10   circumstances and other obligations when fashioning the

11   payment schedule.

12       We reject Britton’s argument that the district court

13   committed reversible error in including two New York

14   criminal delinquency adjudications in calculating Britton’s

15   criminal history category.   Specifically, Britton contends

16   that his juvenile delinquency adjudications are “expunged”

17   convictions and thus should have been excluded under

18   U.S.S.G. § 4A1.2(j).   Because Britton did not object on this

19   ground below, either in his objections to the Presentence

20   Report (“PSR”) or at the sentencing hearing, we review for

21   plain error only.

22


                                   3
1        The Guidelines provide that two criminal history points

2    should be added for each juvenile sentence to confinement of

3    at least 60 days if the defendant was released from that

4    confinement within five years of committing the instant

5    offense.    U.S.S.G. § 4A1.2(d)(2)(A).    However, “[s]entences

6    for expunged convictions are not counted.”      U.S.S.G. §

7    4A1.2(j).    The Guidelines do not define when a conviction is

8    expunged.    This Court has held that a conviction is

9    “expunged” if the relevant statute “effectively eliminate[s]

10   all vestiges of the adjudication.”       See United States v.

11   Matthews, 205 F.3d 544, 547 (2d Cir. 2000); see also United

12   States v. Beaulieau, 959 F.2d 375, 380-81 (2d Cir. 1992).

13       The New York Family Court Act provides that “another

14   court, in imposing sentence upon an adult after conviction

15   may receive and consider the records and information on file

16   with the family court, unless such records and information

17   have been sealed pursuant to § 375.1 [of the Family Court

18   Act, which provides for sealing of records upon termination

19   of a juvenile proceeding in favor of the juvenile].”         N.Y.

20   Fam. Ct. Act § 381.2.    If the defendant’s record is not

21   sealed pursuant to § 375.1, vestiges of the juvenile

22   delinquency adjudication remain and thus such adjudications


                                    4
1    are not considered “expunged” under U.S.S.G. § 4A1.2(j).

2    See Matthews, 205 F.3d at 547; Beaulieau, 959 F.2d at 380-

3    81.     Even if it would constitute error for the district

4    court to include juvenile delinquency adjudications sealed

5    pursuant to § 375.1 in calculating a defendant’s criminal

6    history category, there was nothing before the district

7    court that made it clear or obvious that Britton’s juvenile

8    records were sealed pursuant to that section.     Therefore,

9    the district court did not commit error, let alone plain

10   error.

11         Similarly unavailing is Britton’s claim that the

12   government’s mistake in calculating his offense level in the

13   plea agreement rendered the resulting sentence unreasonable

14   or unfair.     The plea agreement provided that the Guidelines

15   calculation contained therein was an “estimate,” that such

16   estimate was not binding on the government or the Court, and

17   that a mistake in the estimate would not entitle Britton to

18   withdraw his plea.     Further, before the district court

19   accepted Britton’s plea, it made sure that he was fully

20   aware that a mistake in the plea agreement’s Guidelines

21   calculations would not give him a basis to withdraw the

22   plea.     There is no evidence–and Britton does not argue–that


                                     5
1    the government acted in bad faith.   Under these

2    circumstances, vacatur of Britton’s sentence is not

3    warranted.    See United States v. Habbas, 527 F.3d 266, 271

4    (2d Cir. 2008).

5        Finally, Britton argues that the district court

6    committed plain error in imposing restitution in the amount

7    of $49,450.   In particular, Britton complains that (1) the

8    district court never considered Britton’s financial

9    resources and other financial obligations in fashioning the

10   restitution order, and (2) the district court’s election to

11   impose the full burden of restitution on Britton even though

12   there were other defendants is “troubling.”   Britton’s

13   arguments are without merit.   The order itself, requiring

14   Britton to pay $25 each quarter while incarcerated and 10%

15   of gross income while on supervised release, reflects

16   consideration of Britton’s financial resources.    Further,

17   there is nothing “troubling” about the district court

18   imposing the “full burden” of restitution on Britton.     The

19   relevant statute specifically provides that “[i]f the court

20   finds that more than [one] defendant has contributed to the

21   loss of a victim, the court may make each defendant liable

22   for payment of the full amount of restitution.”    18 U.S.C. §

23   3664(h).

                                    6
1        We have considered all of Britton’s remaining

2    arguments, and after a thorough review of the record, we

3    find them to be without merit.

4        For the foregoing reasons, the judgment of the district

5    court is hereby AFFIRMED.

 6
 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10




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