     13-4207-cr
     United States v. Koehn

 1                                 UNITED STATES COURT OF APPEALS
 2                                     FOR THE SECOND CIRCUIT
 3
 4                                         SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 8   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 9   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
10   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
11   NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14
15           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
16   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
17   14th day of October, two thousand fourteen.
18
19   Present:    ROSEMARY S. POOLER,
20               REENA RAGGI,
21               PETER W. HALL,
22                           Circuit Judges.
23   _____________________________________________________
24
25   UNITED STATES OF AMERICA,
26
27                                   Appellee,
28
29                            v.                                            13-4207-cr
30
31   JOSEPH A. KOEHN,
32
33                           Defendant-Appellant.
34   __________________________________________
35
36   Appearing for Appellant:        Michael J. Stachowski, Buffalo, N.Y.
37
38   Appearing for Appellee:         Stephan J. Baczynski, Assistant United States Attorney of Counsel
39                                   for the Western District of New York, (William J. Hochul, Jr.,
40                                   United States Attorney, on the brief) Buffalo, N.Y.
41
42          Appeal from the United States District Court for the Western District of New York
43   (Skretny, J.).
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 2        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 3   AND DECREED that the appeal be and it hereby is DISMISSED.
 4
 5          Joseph A. Koehn appeals from the October 18, 2013 judgment of conviction and sentence
 6   entered by the United States District Court for the Western District of New York (Skretny, J.).
 7   The district court imposed a below-Guideline sentence of 240 months’ imprisonment after Koehn
 8   pleaded guilty pursuant to a plea agreement to one count of attempted production of child
 9   pornography in violation of 18 U.S.C. § 2251(a), and one count of possession of child
10   pornography in violation of 18 U.S.C. § 2252A(a)(5)(b). We assume the parties’ familiarity with
11   the underlying facts, procedural history, and specification of issues for review.
12
13           Koehn argues that his sentence is substantively unreasonable, but his plea agreement
14   expressly waived the right to bring this challenge. The agreement provided in relevant part that
15   the defendant “knowingly waives the right to appeal and collaterally attack any component of a
16   sentence imposed by the Court which falls within or is less than . . . 324 to 405 months . . .
17   notwithstanding the manner in which the Court determines the sentence.” Because the district
18   court’s sentence of 240 months’ imprisonment clearly falls within the bounds of the plea
19   agreement, we do not reach the merits of Koehn’s claims unless we find the waiver
20   unenforceable.
21
22           “Waivers of the right to appeal a sentence are presumptively enforceable,” United States
23   v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (internal quotation marks omitted), and a waiver will
24   be treated as valid so long as it is “knowingly, voluntarily, and competently provided by the
25   defendant,” United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). Defendant does not
26   dispute that he entered his plea knowingly and voluntarily. Rather, he asserts we should not
27   enforce his waiver because the three-level reduction for acceptance of responsibility he thereby
28   received constitutes inadequate consideration. In so arguing, Koehn relies on cases in which we
29   have applied a “close look” to “unorthodox” appellate waivers, and declined to enforce them
30   where the defendant “received very little benefit in exchange for [his] plea of guilty.” United
31   States v. Goodman, 165 F.3d 169, 174 (2d Cir. 1999) (internal quotation marks omitted); see
32   United States v. Rosa, 123 F.3d 94, 99 (2d Cir. 1997). These cases are inapposite because the
33   waiver at issue is not unorthodox. “We have regularly enforced knowing and voluntary waivers
34   in the conventional form that waive the right to appeal a sentence within (or below) an agreed
35   guideline range.” Goodman, 165 F.3d at 174 (emphasis in original); see also United States v.
36   Jacobson, 15 F.3d 19, 22–23 (2d Cir. 1994).
37
38           “The ‘decisive considerations’ motivating our decision to enforce, vel non, an appeal
39   waiver are the ‘nature of the right at issue’ and ‘whether the sentence was reached in a manner
40   that the plea agreement did not anticipate.’” United States v. Coston, 737 F.3d 235, 237 (2d Cir.
41   2013) (quoting Riggi, 649 F.3d at 148). Here, defendant stipulated to the correctness of a reduced
42   Guideline calculation, and received, not only the promised three-level reduction, but also a
43   sentence that fell seven years below the low end of the Guideline range contemplated by the
44   parties. “While receipt of the expected benefits of a plea is, of course, not in and of itself a reason
45   to hold a defendant to a plea agreement which is otherwise invalid,” it speaks to the “overall
46   fairness, and thereby the validity, of that agreement.” Rosa, 123 F.3d at 101-02. Because the plea

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 1   agreement here was otherwise valid, we hold that it precludes Koehn’s present challenges to the
 2   substantive reasonableness of his sentence.
 3
 4           Even if Koehn had not waived the right to bring his present appeal, he would not be
 5   entitled to relief because his sentencing challenge fails on the merits. “The district courts have
 6   discretion to select an appropriate sentence, and in doing so are statutorily bound to consider the
 7   factors listed in [18 U.S.C.] § 3553(a), including the advisory Guidelines range.” United States v.
 8   Cavera, 550 F.3d 180, 188 (2d Cir. 2008). Nonetheless, “the requirement that a sentencing judge
 9   consider an 18 U.S.C. § 3553(a) factor is not synonymous with a requirement [that] the factor be
10   given determinative or dispositive weight in the particular case.” United States v. Florez, 447
11   F.3d 145, 157 (2d Cir. 2006) (alterations in original) (internal quotation marks omitted). The
12   record below reveals that the district court carefully considered the sentencing factors set out in
13   Section 3553(a) in addition to this court’s guidance in United States v. Dorvee, 616 F.3d 174 (2d
14   Cir. 2010) and United States v. Tutty, 612 F.3d 128 (2d Cir. 2010). The district court also fully
15   explained its reasons for discrediting the assertions of the defendant’s expert that Koehn’s
16   persistent attempts to procure a four-year-old child were mere fantasy, and we identify no clear
17   error in this conclusion. Nor are we persuaded that defendant’s sentence—seven years below the
18   low end of the agreed-upon guidelines range—“cannot be located within the range of permissible
19   decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted).
20
21           We have considered the remainder of Koehn’s arguments and find them to be without
22   merit. Accordingly, the appeal is hereby DISMISSED.
23
24
25                                                        FOR THE COURT:
26                                                        Catherine O’Hagan Wolfe, Clerk
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