     10-3018
     United States v. Williams


                          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 18th day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      UNITED STATES OF AMERICA,
14
15                   Appellee,
16
17                   -v.-                                               10-3018
18
19      DWANDELL WILLIAMS,
20
21                   Defendant-Appellant.
22
23
24      - - - - - - - - - - - - - - - - - - - -X
25
26      FOR APPELLANT:                        Steven Y. Yurowitz
27                                            New York, NY
28

                                                 1
 1   FOR APPELLEE:              Monica J. Richards (Stephan J.
 2                              Baczynski, on the brief)
 3                              Assistant United States
 4                              Attorney, for William J. Hochul,
 5                              Jr., United States Attorney,
 6                              Western District of New York,
 7                              Buffalo, NY
 8
 9        Appeal from judgments of the United States District
10   Court for the Western District of New York (Arcara, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the district court’s judgments are
14   AFFIRMED.
15
16        Dwandell Williams appeals from judgments entered in the
17   United States District Court for the Western District of New
18   York convicting him upon a guilty plea of [a] possessing
19   with the intent to distribute cocaine base in violation of
20   21 U.S.C. § 841(a)(1) and [b] violating the terms of his
21   supervised release. He was sentenced to consecutive terms
22   of imprisonment of 210 and 12 months, respectively. We
23   assume the parties’ familiarity with the underlying facts,
24   the procedural history, and the issues presented for review.
25
26   [1] Williams argues that he was deprived of his Sixth
27   Amendment right to the effective assistance of counsel at
28   his sentencing. However, having waived his right to appeal
29   any sentence within or below the Guidelines range, he may
30   not now do an end-run around his plea agreements on the
31   ground of ineffective assistance. “Waivers of the right to
32   appeal a sentence are presumptively enforceable.” United
33   States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). So long
34   as they are knowing and voluntary, such waivers “must be
35   enforced because, if they are not, the covenant not to
36   appeal becomes meaningless and would cease to have value as
37   a bargaining chip in the hands of defendants.” United
38   States v. Granik, 386 F.3d 404, 412 (2d Cir. 2004) (internal
39   quotation marks omitted). A defendant may not “dress up” a
40   challenge to the correctness of his sentence as a Sixth
41   Amendment claim for ineffective assistance of counsel by
42   arguing the deficiency of his counsel’s performance “not at
43   the time of the plea, but at sentencing.” United States v.
44   Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (per curiam).

                                  2
 1   Here, Williams’ sentence fell within or below the Guidelines
 2   ranges specified in the plea agreements, and therefore
 3   triggered the appellate waiver provisions of those
 4   agreements. His arguments as to the adequacy of his
 5   attorney’s performance at sentencing are consequently
 6   foreclosed. See id.
 7
 8   [2] Williams also argues that he was not advised that the
 9   Guidelines recommended an upward departure on the supervised
10   release violation because his original sentence reflected a
11   downward departure. But Williams was aware that he could
12   receive a prison term of up to five years for his supervised
13   release violation. Moreover, Williams was not prejudiced by
14   his attorney’s failure to mention the impact of the downward
15   departure at his original sentencing, since he ultimately
16   received a below-Guidelines sentence. See Strickland v.
17   Washington, 466 U.S. 668, 687 (1984). Williams therefore
18   has not shown that his attorney was ineffective in entering
19   into the plea agreement.
20
21        We have considered Williams’ remaining arguments and
22   find them to be without merit. For the foregoing reasons,
23   the judgments of the district court are hereby AFFIRMED.
24
25
26
27                              FOR THE COURT:
28                              CATHERINE O’HAGAN WOLFE, CLERK
29




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