12-2578-cr
United States v. Warren


                          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 TO 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 20th day of May, two thousand thirteen.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                         Circuit Judges,
                 BRIAN M. COGAN,
                         District Judge.*
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UNITED STATES OF AMERICA,
                           Appellee,

                     v.                                                  No. 12-2578-cr

SILFORD WARREN,
                         Defendant-Appellant.
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          *
         The Honorable Brian M. Cogan, of the United States District Court for the Eastern
District of New York, sitting by designation.
FOR APPELLANT:                     Gail Gray, Esq., New York, New York.

FOR APPELLEE:                      Kathryn Keneally, Assistant Attorney General, Frank P.
                                   Cihlar, Chief, Criminal Appeals & Tax Enforcement
                                   Policy Division, Gregory Victor David, Mark S.
                                   Determan, Attorneys, Tax Division, Department of
                                   Justice; Loretta E. Lynch, United States Attorney for the
                                   Eastern District of New York, New York, New York, of
                                   counsel.

       Appeal from the United States District Court for the Eastern District of New York

(William F. Kuntz, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal of the judgment entered on June 12, 2012, is DISMISSED.

       Silford Warren, who stands convicted of failing to collect and pay his employees’

payroll taxes, see 26 U.S.C. § 7202, appeals his 24-month within-Guidelines prison sentence

as procedurally unreasonable. Warren submits that his appeal is not foreclosed by his

plea-agreement promise not to challenge a prison sentence of 27 months or below because

(1) prior to his guilty plea, the district court amended and revised the plea agreement to

afford him an unqualified right to appeal his sentence, and even if it did not, (2) such a

waiver does not preclude appeal from a sentence imposed on the basis of constitutionally

impermissible factors. See United States v. Jacobson, 15 F.3d 19, 22–23 (2d Cir. 1994).

Neither argument has merit.




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1.     District Court’s Advice of Right To Appeal

       The plea allocution record, viewed in its entirety, does not support Warren’s argument

that statements by the district court led him to plead guilty with the expectation that he would

have an unqualified right to appeal his sentence. See United States v. Monzon, 359 F.3d 110,

116 (2d Cir. 2004) (“Where the record clearly demonstrates that the defendant’s waiver of

her right to appeal a sentence within an agreed Guidelines range was knowing and voluntary,

that waiver is enforceable.”); cf. United States v. Vaval, 404 F.3d 144, 152 (2d Cir. 2005)

(observing in related context of interpreting plea agreement that “court must look to what the

parties to the plea agreement reasonably understood to be the terms of the agreement”

(internal quotation marks omitted)); United States v. Maher, 108 F.3d 1513, 1524 (2d Cir.

1997) (holding harmless deficiency in court’s explanation of offenses charged, “for the

record as a whole reveals that each defendant plainly understood the nature of the charges

against him”); Fed. R. Crim. P. 11(h) advisory committee note (1983) (calling Rule 11 error

in plea allocution harmless where “some essential element of the crime was not mentioned,

but the defendant’s responses clearly indicate his awareness of that element”).

       Two statements by the district court warrant mention. The first was made in the

context of advising Warren of the consequences of surrendering his right to trial: “There will

be no trial in this case. There will be no appeal on the question of whether you did or did not

commit this crime. The only thing you could appeal would be if you thought I did not

properly follow the law in sentencing you.” Tr. 28 (emphasis added). Soon thereafter,

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however, the district court inquired as to whether Warren’s guilty plea was pursuant to any

agreement. The prosecutor, defense counsel, and Warren himself confirmed that it was.

Indeed, Warren acknowledged that he had reviewed the agreement with his counsel and

understood its terms. The prosecutor then accurately read into the record certain provisions

of the agreement, including Warren’s promise not to appeal or otherwise to challenge an

imposed sentence of 27 months or below. In these circumstances, no defendant could

reasonably have understood the district court’s earlier highlighted statement to have absolved

him from the appellate waiver condition of his plea agreement.

       The second statement at issue was made at the conclusion of the district court’s

explanation to Warren of the sentencing consequences of a guilty plea: “If I sentence you

differently from what the lawyers or anyone else has estimated or predicted, you would still

be bound by your guilty plea. You could not take back your guilty plea. If after I impose

sentence you or your attorney think I have not properly followed the law in sentencing you,

you can appeal your sentence to a higher court.” Tr. 36 (emphasis added). To be sure, it

would have been preferable for the district court, by then aware of the appellate waiver

provision of the plea agreement, not to have employed what appears to have been its standard

advice as to appeal, but to have clarified that any such appeal was limited by the terms of the

plea agreement.2 No matter. The prosecution promptly ensured against any possible


       2
        The district court made such an effort at Warren’s sentencing, when it told him he
had “the right to appeal the sentence pursuant to the plea agreement.” Sent. Tr. 35 (emphasis

                                              4
misunderstanding by reiterating the waiver condition:

       Your Honor, I would just note that the allocution on the waiver of the right to
       appeal is slightly limited by the terms of the plea agreement. That the
       defendant only has the right to appeal, if the court were to sentence him to a
       term of imprisonment of greater than 27 months. If it were anything less than
       27 months, the defendant would give up that right to appeal.

Id. at 37.

       Thus, the record provides no support for Warren’s claim that he pleaded guilty

thinking that the district court had absolved him from the appellate waiver provision of his

plea agreement.

2.     Sentence Challenge

       We have indicated that in “extraordinary circumstances,” such as when a sentence is

infected by “racial bias” or such arbitrariness as to amount to “an abdication of judicial

responsibility,” we may excuse a defendant from a plea agreement waiver of appeal. United

States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995); see United States v. Jacobson, 15 F.3d

at 22–23. Such cases are “few in kind and sporadic in frequency.” United States v.

Gomez-Perez, 215 F.3d 315, 319–20 (2d Cir. 2000) (upholding appellate waiver). This is

not one of them.




added). Neither Warren nor his counsel then suggested that defendant had entered his guilty
plea with an understanding that his right to appeal his sentence was unqualified by his plea
agreement.

                                             5
       Insofar as Warren faults the sentencing judge for impermissibly allowing prior arrests

not resulting in conviction to influence his sentence, his failure to voice this objection in the

district court means that we review only for plain error. See United States v. Reyes, 691 F.3d

453, 457 (2d Cir. 2012).3 Warren’s claim fails at the first step of plain error analysis because

the record shows that the district court neither explicitly nor implicitly based the challenged

sentence on unproved arrest conduct. Cf. United States v. Juwa, 508 F.3d 694, 701 (2d Cir.

2007 (identifying procedural error in sentence enhancement based on unsubstantiated charges

in indictment). Certainly, the arrests played no part in the district court’s calculation of

Warren’s Guidelines range. Indeed, the district court referenced the arrests only once at

sentencing, when it asked the prosecution if it agreed with defense counsel’s assertion that

Warren had a “pristine record.” Sent. Tr. 19. When the prosecution indicated its agreement,

the district court replied, “Okay, proceed,” and thereafter made no further mention of arrests.

Id. at 20–21.

       To the extent Warren contends that references to domestic incidents in the arrest

record prompted the district court to view him as a “violent misogynist,” Appellant Br.

19–20, this is belied by the court’s specific assurances to Warren at sentencing that the tax


       3
         In his post-sentencing submission to the district court, Warren did not argue that
consideration of these arrests was impermissible; he contended only that the district court had
failed to consider positive aspects of his life in addition to his arrest history. See App. 103
(“While the court is not limited in the scope of what it may or may not consider under [18
U.S.C.] § 3553(a), it is problematic when a Court only considers what it deems to be
aggravating factors without considering any mitigating factors.”).

                                               6
case was “not about your family whom you support,” and whom the court assumed to be

“wonderful” and “supportive.” Sent. Tr. 33.4 As for Warren’s argument that there is

“no . . . plausible explanation” for the challenged sentence, apart from his arrest record,

Appellant’s Br. 20, the record is to the contrary. Warren’s sentence fell within the

Guidelines for his tax crime of conviction. The district court repeatedly referenced the need

for general deterrence of that sort of tax crime. See Sent. Tr. 26, 34 (noting voluntary nature

of tax system and need “to discourage similarly situated bad actors who are considering

stealing from the common fisc”).

       In sum, Warren fails to show any district court error in imposing the challenged

sentence, much less error presenting the sort of extraordinary circumstances that would

prompt us to excuse his waiver of appeal.

       Accordingly, the appeal is DISMISSED.

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




       4
          The district court did refer to a domestic-incident arrest in denying Warren’s
subsequent motion for correction of sentence, but did so only in response to defendant’s
efforts to marshal his family circumstances in his favor.

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