12-2980-cr
United States v. Cruz-Castillo

                           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.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 1st day of November, two thousand thirteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         AMALYA L. KEARSE,
         RICHARD C. WESLEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA

                           Appellee,


                           -v-                                  No. 12-2980-cr

NOLAN CRUZ-CASTILLO, AKA Nolan Curz-Castillo,

                     Defendant-Appellant.
________________________________________________

For Appellee:                     Harris M. Fischman and Michael A. Levy, Assistant United
                                  States Attorneys, for Preet Bharara, United States Attorney for
                                  the Southern District of New York, New York, NY

For Defendant-Appellant:          Marsha R. Taubenhaus, Law Offices of Marsha R.
                                  Taubenhaus, New York, NY
       Appeal from the United States District Court for the Southern District of New York
(Crotty, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Nolan Cruz-Castillo appeals from a July 11, 2012 judgment of

conviction entered in the United States District Court for the Southern District of New York

(Crotty, J.) following a plea of guilty. We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal.

       First, Cruz-Castillo appeals from the district court’s denial of his motion to withdraw his

guilty plea. He claims that his motion should have been granted, asserting that he did not

understand the plea agreement, which he alleges was not properly translated into Spanish, and

because he could not easily communicate with his attorney, who he alleges was not fluent in

Spanish. But Cruz-Castillo’s allegations in the motion to withdraw and on appeal “merely

contradict the record.” United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) (quoting United

States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992)). At his plea allocution, Cruz-Castillo

confirmed while under oath that he had reviewed his plea agreement with his attorney and that

he was satisfied with his attorney’s advice and representation. “A defendant’s bald statements

that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw

[a] guilty plea.” Id. We conclude that the district court did not abuse its discretion in denying

Cruz-Castillo’s motion to withdraw his plea.

       Next, Cruz-Castillo appeals from the district court’s imposition of a sentence of 99

months of imprisonment, arguing that the sentence was unreasonable. However, in his plea

agreement Cruz-Castillo agreed not to appeal from “any sentence within or below the Stipulated



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Guidelines Range of 87 to 108 months’ imprisonment.” J.A. at 23. This waiver covers the

sentence that was imposed by the district court.

       Cruz-Castillo contends that he is not bound by the appeal waiver because the government

breached the plea agreement when it advocated against the application of an acceptance-of-

responsibility adjustment. We disagree. The agreement states that “[n]othing in this Agreement

limits the right of the Government to seek denial of the adjustment for acceptance of

responsibility . . . if the defendant fails clearly to demonstrate acceptance of responsibility, to the

satisfaction of the Government, through his allocution and subsequent conduct prior to the

imposition of sentence.” J.A. at 23. The government reasonably determined that Cruz-Castillo

had failed to demonstrate acceptance of responsibility to the government’s satisfaction because

Cruz-Castillo had filed a motion to withdraw his guilty plea in which, at the least, he

“maintain[ed] his innocence to some degree.” J.A. at 44. The government was therefore entitled

to advocate against a finding that Cruz-Castillo had accepted responsibility, and in doing so it

did not breach the plea agreement. Consequently, the appeal waiver within that agreement bars

Cruz-Castillo’s sentencing appeal. We will enforce that waiver here and decline to consider his

sentencing challenges. See United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (per

curiam) (“It is by now well-settled that a defendant’s knowing and voluntary waiver of his right

to appeal a sentence within an agreed upon guideline range is enforceable.”).

       We have considered Cruz-Castillo’s remaining arguments and find them to be without

merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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