     09-4202-cr
     United States v. Magana



                          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 3 rd day of September, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                REENA RAGGI,
 9                         Circuit Judge,
10                JED S. RAKOFF,
11                         District Judge. *
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15
16                    Appellee,
17
18                    -v.-                                         09-4202-cr
19
20       AURELIO BERBER MAGANA, also known as
21       Yayo,
22


                *
               The Honorable Jed S. Rakoff, of the United States
         District Court for the Southern District of New York,
         sitting by designation.

                                                  1
 1            Defendant-Appellant,
 2
 3   JOSE REYES SANCHEZ, JUAN ANTONIO
 4   RODRIGUEZ-MESA, also known as
 5   Juanito, also known as Jean Antonio
 6   Rodriguez, LUIS SANTIAGO, JAN LUIS
 7   REYES-MARTE, also known as “39,”
 8   KELVIN HERNANDEZ, also known as
 9   Chamo, also known as Chamuco, also
10   known as Miguel Nater,
11
12            Defendants.
13   - - - - - - - - - - - - - - - - - - - -X
14
15   FOR APPELLANT:    Joyce C. London, New York, NY.
16
17   FOR APPELLEE:     Jesse M. Furman, Assistant United States
18                     Attorney (Adam S. Hickey, Assistant
19                     United States Attorney, on the brief),
20                     for Preet Bharara, United States Attorney
21                     for the Southern District of New York,
22                     United States Attorney’s Office for the
23                     Southern District of New York, New York,
24                     NY.
25
26        Appeal from a judgment of the United States District
27   Court for the Southern District of New York (Cote, J.).
28
29        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
30   AND DECREED that the appeal be DISMISSED.
31
32        Defendant-appellant Aurelio Berber Magana appeals from
33   the judgment of conviction entered by the United States
34   District Court for the Southern District of New York (Cote,
35   J.) , principally sentencing him to 151 months of
36   imprisonment. We assume the parties’ familiarity with the
37   underlying facts, the procedural history, and the issues
38   presented for review.
39
40        On May 8, 2009, pursuant to a written plea agreement,
41   Berber pleaded guilty to Count One of the operative
42   indictment, charging him with conspiring to distribute one
43   kilogram or more of heroin, in violation of 21 U.S.C. §§
44   812, 841(a)(1), 841(b)(1)(A), and 846. The plea agreement
45   contained an appeal-waiver provision, under which Berber
46   agreed not to “file a direct appeal, nor litigate under

                                     2
 1   Title 28, United States Code, Section 2255 and/or Section
 2   2241, any sentence within or below the Stipulated Guidelines
 3   Range” of 151 to 188 months of imprisonment.
 4
 5        On appeal, Berber contends that the appeal-waiver
 6   provision is unenforceable because of the government’s
 7   conduct. See United States v. Gomez-Perez, 215 F.3d 315,
 8   319 (2d Cir. 2000) (explaining that “a defendant may have a
 9   valid claim that the waiver of appellate rights is
10   unenforceable . . . when the government breached the plea
11   agreement”). But the government’s conduct--in its written
12   sentencing submission and at the sentencing proceeding--was
13   fully consistent with the government’s contractual
14   obligations and wholly appropriate in response to the
15   arguments raised by Berber. Accordingly, the appeal-waiver
16   provision is enforceable and Berber’s appeal is dismissed.
17
18        We have considered all of Berber’s contentions on this
19   appeal and have found them to be without merit.
20   Accordingly, the appeal is hereby DISMISSED.
21
22
23                              FOR THE COURT:
24                              CATHERINE O’HAGAN WOLFE, CLERK
25
26
27




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