13-621
United States v. Doe

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                             AMENDED 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 27th day of June, two thousand and fourteen.

PRESENT:

           JON O. NEWMAN,
           JOHN M. WALKER, JR.,
           JOSÉ A. CABRANES,
                                Circuit Judges.
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UNITED STATES,

                       Appellee,

                               -v.-                                                                No. 13-621
JOHN DOE,

                      Defendant-Appellant
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FOR DEFENDANT-APPELLANT:                                                            STEVEN YUROWITZ, Newman &
                                                                                    Greenberg, New York, NY.

FOR APPELLEE:                                                                       BRENDA K. SANNES (Geoffrey J.L.
                                                                                    Brown, on the brief), Assistant United
                                                                                    States Attorneys, for Richard S.
                                                                                    Hartunian, United States Attorney for
                                                                                    the Northern District of New York,
                                                                                    Syracuse, NY.



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      Appeal from the February 19, 2013 judgment of the United States District Court for the
Northern District of New York (Norman A. Mordue, Judge).

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

        Defendant John Doe appeals from a judgment of the District Court sentencing him
principally to a 151-month prison term. Doe pleaded guilty, pursuant to a plea agreement
accompanied by a separate confidential cooperation agreement, to a charge of manufacturing
marijuana plants in violation of 21 U.S.C. § 841(a)(1). Doe challenges his conviction and sentence
on the basis that the District Court did not discuss his cooperation agreement at the plea colloquy or
sentencing. Accordingly, he contends, his plea was not knowing and voluntary and the sentencing did
not comply with the open court requirement as set out in 18 U.S.C. § 3553(c).1

                                                       BACKGROUND

        On September 24, 2012, after Doe was arrested, he entered into an agreement to plead guilty
to one count of manufacturing marijuana. The plea agreement stipulated that Doe would not appeal
a sentence of 240 months or below. The cooperation agreement provided that the Government
would notify the Court of Doe’s cooperation and, if the Government determined that he had
provided “substantial assistance,” it could in its sole discretion recommend a downward departure
pursuant to USSG § 5K1.1 or 18 U.S.C. § 3553(c).

        At the plea colloquy, the Court discussed the Guideline calculations and the appeal waiver,
but did not discuss the cooperation agreement. On October 4, 2012, the Government moved for a
one-level downward departure based on the cooperation agreement. At sentencing, the District
Court calculated a Guideline range of 151-188 months, and sentenced Doe to 151 months. In its
Statement of Reasons, issued later, the District Court explained that it had departed downward
based in part on Doe’s cooperation. Doe appealed his sentence to this Court.

                                                         DISCUSSION

          Because Doe “never sought to withdraw his plea, and did not object” in the District Court to
the alleged Rule 11 violation or the sentence imposed we review his claims for “plain error.” United
States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013).

       At the colloquy, the District Court informed Doe of the 240-month mandatory minimum
sentence, and discussed the appeal waiver. Accordingly, Doe knew of the “direct consequences of a
         1 18 U.S.C. § 3553(c) provides in relevant part: “The court, at the time of sentencing, shall state in open court

the reasons for its imposition of the particular sentence . . . .”



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guilty plea,” i.e. anything that would have a “definite, immediate and largely automatic effect on the
range of . . . punishment.” United States v. Youngs, 687 F.3d 56, 60 (2d Cir. 2012) (internal quotation
marks omitted). Doe’s claim that the failure to discuss the confidential cooperation agreement
rendered his plea unknowing and, therefore, invalid mirrors arguments previously rejected by this
Court.

         In Tarbell the district court discussed the mandatory minimum sentence under the plea
agreement, but did not discuss a confidential cooperation agreement. 728 F.3d at 126-27. We held
that where the cooperation agreement made clear that there was no promise of a downward
departure, and the defendant was aware of the applicable mandatory minimum sentence, the failure
to discuss the cooperation agreement did not render the plea unknowing or involuntary. Id.
Moreover, the “decision not to discuss the confidential cooperation agreement in open court [was]
perfectly understandable” and not plain error. Id. at 127. We noted however that “the better
practice in these circumstances would have been for the District Court to use one of the various
tools at its disposal [—closing the courtroom during plea proceedings, sealing the transcript of such
proceedings, and issuing rulings under seal—] to reduce if not eliminate the risks that may arise
from fulfilling its obligation to ensure that the defendant understands the range of potential
penalties, rather than simply remaining completely silent about such a cooperation agreement.” Id.
(internal quotation marks, citations and alterations omitted).2

        Like Tarbell, this case illustrates the tension that exists between the principle that all relevant
aspects of the plea proceeding should be discussed, preferably in open court, and the need to
preserve the confidentiality of a defendant’s cooperation with the government in criminal
proceedings. At a minimum, we believe that the terms of the cooperation agreement, if not the
agreement itself, should be before the sentencing judge at the time the plea is accepted. In the
absence of a department-wide policy, however, that tension must be resolved on a case-by-case base.
Here, the tension did not result in reversible error because Doe has not shown how the failure to
discuss the cooperation agreement affected his substantial rights: he does not contend that he was
unaware of the terms of the cooperation agreement, which, regardless, would not necessarily have
affected his sentence. Moreover, the agreement ultimately resulted in Doe receiving a lower
sentence.3 Because Doe’s guilty plea was knowing and voluntary, the waiver of his right to appeal
any sentence below 240 months is enforceable, and requires dismissal of this appeal.




         2   The District Court did not have the benefit of our decision in Tarbell when sentencing Doe.
         3Doe also makes a meritless ineffective assistance argument, claiming that “defense counsel never once
advocated that Doe should receive the benefit of [his] cooperation.” But Doe did receive the benefit of the cooperation
agreement in the form of a downward departure.



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                               CONCLUSION

For the reasons set out above, this appeal is DISMISSED.

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




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