     13-2587
     United States v. Almonte

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 5th day of December, two thousand fourteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-2587
16
17       ANTONIO ALMONTE,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        RYAN THOMAS TRUSKOSKI, Ryan
22                                             Thomas Truskoski, P.A.,
23                                             Harwinton, Connecticut.
24
25       FOR APPELLEE:                         JOSEPH J. KARASZEWSKI, for
26                                             William J. Hochul, Jr., United
27                                             States Attorney for the Western


                                                  1
 1                              District of New York, Buffalo,
 2                              New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Western District of New York (Arcara, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the appeal be DISMISSED.
 9
10        Defendant-appellant Antonio Almonte appeals from the
11   judgment of the United States District Court for the Western
12   District of New York (Arcara, J.), sentencing him after a
13   guilty plea principally to 70 months’ imprisonment. On
14   appeal, Almonte argues that the district court erred by
15   failing to properly consider: (1) the advisory U.S.
16   Sentencing Guidelines (“Guidelines”) range contained in his
17   plea agreement, and (2) the factors set forth in 18 U.S.C. §
18   3553(a). We assume the parties’ familiarity with the
19   underlying facts, the procedural history, and the issues
20   presented for review.
21
22        Almonte has waived his right to appeal his sentence,
23   which falls within the range of sentences subject to the
24   plea agreement’s appeal waiver. “Waivers of the right to
25   appeal a sentence are presumptively enforceable.” United
26   States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (citation
27   and internal quotation marks omitted). Defendants may waive
28   the right to appeal even “meaningful errors” in sentencing,
29   and such waivers are unenforceable only in “very
30   circumscribed” circumstances. Id. at 147 (citation and
31   internal quotation marks omitted). We have held waivers of
32   appeal to be unenforceable
33
34       when [1] the waiver was not made knowingly,
35       voluntarily, and competently, [2] when the
36       sentence was imposed based on constitutionally
37       impermissible factors, such as ethnic, racial or
38       other prohibited biases, [3] when the government
39       breached the plea agreement, or [4] when the
40       sentencing court failed to enunciate any rationale
41       for the defendant’s sentence, thus amounting to an
42       abdication of judicial responsibility subject to
43       mandamus.
44
45   United States v. Buissereth, 638 F.3d 114, 118 (2d Cir.
46   2011) (citation omitted).
47

                                  2
 1        None of these circumstances is presented here. The
 2   record is clear that: (1) Almonte understood and knowingly
 3   agreed to be bound by the waiver of appeal; (2) the district
 4   court did not use constitutionally impermissible factors;
 5   (3) the government complied with the plea agreement by
 6   advocating for the Guidelines range originally agreed upon
 7   by the parties; and (4) the district court articulated an
 8   appropriate rationale for its sentence and made specific
 9   reference to the sentencing factors in 18 U.S.C. § 3553(a)
10   and the government’s § 5K1.1 letter.
11
12        The record does not support Almonte’s contention that
13   the district court focused on the waiver of appeal to the
14   exclusion of appropriate sentencing considerations. Cf.
15   United States v. Woltmann, 610 F.3d 37, 42 (2d Cir. 2010)
16   (“The district court misconstrued the [plea agreement] as an
17   enforceable concession by [the defendant] that any sentence
18   at or below 27 months was appropriate--without regard to any
19   5K1.1 letter and the § 3553(a) factors.”). Nor did the
20   district court defeat the parties’ reasonable expectations
21   by declining to adopt the criminal history category and
22   Guidelines range agreed to by the parties. Cf. id. at 40-
23   42. The plea agreement expressly contemplated that the
24   district court could sentence based on a criminal history
25   category and/or a Guidelines range different from those
26   contained in the agreement, and provided that any such
27   deviation would not permit Almonte to withdraw his plea. “A
28   mutual mistake concerning the proper Guidelines range is an
29   insufficient basis to void a plea agreement” if the
30   possibility of such mistake is addressed by the agreement.
31   Riggi, 649 F.3d at 149; see also United States v. Rosen, 409
32   F.3d 535, 548-49 (2d Cir. 2005). Likewise, a mutual mistake
33   about the Guidelines range does not render unenforceable a
34   waiver of appeal in a plea agreement where, as here, the
35   parties “expressly took into account the possibility that
36   [their] understandings might not prevail,” Rosen, 409 F.3d
37   at 548.
38
39        Relying on United States v. Buchanan, 59 F.3d 914, 917
40   (9th Cir. 1995), Almonte argues that he is not bound by the
41   appeal waiver because, after sentencing, the district court
42   stated (erroneously) that he had not waived his right to
43   appeal. Buchanan stands for the rule that “a district
44   court’s clear statement that a defendant has the right to
45   appeal renders unenforceable the defendant’s prior waiver of
46   this right in a plea agreement.” United States v.
47   Arias-Espinosa, 704 F.3d 616, 618 (9th Cir. 2012). This

                                  3
 1   rule was rejected by this Circuit in United States v.
 2   Fisher, which held that “an otherwise enforceable waiver of
 3   appellate rights is not rendered ineffective by a district
 4   judge’s post-sentencing advice suggesting, or even stating,
 5   that the defendant may appeal.” 232 F.3d 301, 304 (2d Cir.
 6   2000). The district court’s post-sentencing comment did not
 7   impair the enforceability of the waiver.
 8
 9        For the foregoing reasons, and finding no merit in
10   Almonte’s other arguments, we hereby DISMISS the appeal.
11
12                              FOR THE COURT:
13                              CATHERINE O’HAGAN WOLFE, CLERK
14
15




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