     13-0842-cr
     United States v. Conrad

                                    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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   1st day of July, two thousand fifteen.
 4
 5   Present:    AMALYA L. KEARSE,
 6               ROSEMARY S. POOLER,
 7               CHRISTOPHER F. DRONEY,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                    Appellee,
14
15                             v.                                                 13-0842-cr
16
17   WAYNE L. CONRAD, JR.,
18
19                           Defendant-Appellant.
20   _____________________________________________________
21
22
23   Appearing for Appellant:         Mary Anne Wirth, Bleakley Platt & Schmidt, LLP, White Plains,
24                                    N.Y.
25
26   Appearing for Appellee:          Paul D. Silver, Assistant United States Attorney for the Northern
27                                    District of New York (Richard S. Hartunian, United States
28                                    Attorney, Richard D. Belliss, Assistant United States Attorney, on
29                                    the brief) Albany, N.Y.
30
31
32   Appeal from the United States District Court for the Northern District of New York
33   (D’Agostino, J.).
34
 1        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 2   AND DECREED that the judgment be AFFIRMED in part, and that the appeal be
 3   DISMISSED in part.
 4
 5           Wayne Conrad appeals from the judgment of the United States District Court for the
 6   Northern District of New York (D’Agostino, J.), entered February 28, 2013, sentencing Conrad
 7   principally to 96 months’ imprisonment with a supervised release term of life. An amended
 8   judgment was entered on May 6, 2013, ordering Conrad to pay $2,881.50 in restitution. No
 9   notice of appeal was filed after entry of the May 6, 2013 amended judgment. We assume the
10   parties’ familiarity with the underlying facts, procedural history, and specification of issues for
11   review.
12
13           Conrad’s plea agreement with the government contained an appeal waiver, stating that
14   Conrad “waives any and all rights, including those conferred by 18 U.S.C. § 3742 and/or 28
15   U.S.C. § 2255, to appeal or collaterally attack his conviction and any sentence of imprisonment
16   of 188 months or less.” “‘[W]e apply appeal-waiver provisions narrowly’ and construe
17   ambiguities with respect to their scope ‘strictly against the Government.’” United States v.
18   Oladimeji, 463 F.3d 152, 157 (2d Cir. 2006). An appeal-waiver provision that specifies a term of
19   imprisonment but makes no mention of supervised release does not constitute a waiver of the
20   defendant’s right to appeal the length of his term of supervised release. See United States v.
21   Cunningham, 292 F.3d 115, 117 (2d Cir. 2002); see also Oladimeji, 463 F.3d at 156-57. Conrad
22   makes no arguments directed specifically at the supervised release aspect of his sentence. To the
23   extent that his appeal challenges that aspect, we affirm.
24
25          Conrad urges us to void the appeal waiver on the grounds that (1) he did not agree to be
26   sentenced for the active distribution of child pornography, only for the receipt and possession of
27   child pornography; and (2) in accepting his plea, the district court failed to adequately ensure
28   that Conrad understood the terms of the appeal waiver as required by Fed. R. Crim. P.
29   11(b)(1)(N). We find both arguments unavailing.
30
31           “Waivers of the right to appeal a sentence are presumptively enforceable,” United States
32   v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (internal quotation marks omitted). An appeal waiver
33   will be treated as valid so long as it is “knowingly, voluntarily, and competently provided by the
34   defendant.” United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). “The ‘decisive
35   considerations’ motivating our decision to enforce, vel non, an appeal waiver are the ‘nature of
36   the right at issue’ and ‘whether the sentence was reached in a manner that the plea agreement did
37   not anticipate.’” United States v. Coston, 737 F.3d 235, 237 (2d Cir. 2013) (quoting Riggi, 649
38   F.3d at 148). “Before accepting a guilty plea, Federal Rule of Criminal Procedure 11(b)(1)(N)
39   requires that the court ‘inform the defendant of, and determine that the defendant understands ...
40   the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the
41   sentence.’” United States v. Cook, 722 F.3d 477, 480 (2d Cir. 2013) (quoting Fed. R. Crim. P.
42   11(b)(1)(N)). Where, as here, a defendant fails to preserve a Rule 11 objection in district court
43   and seeks to amend his guilty plea on appeal, the defendant must demonstrate plain error. United
44   States v. Vonn, 535 U.S. 55, 58-59 (2002). “Plain error review requires a defendant to
45   demonstrate that (1) there was error, (2) the error was plain, (3) the error prejudicially affected
46   his substantial rights, and (4) the error seriously affected the fairness, integrity or public
47   reputation of judicial proceedings. . . . Additionally, to show that a Rule 11 violation was plain

                                                      2
 1   error, the defendant must demonstrate that there is a reasonable probability that, but for the error,
 2   he would not have entered the plea.” United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012)
 3   (internal quotation marks omitted).
 4
 5           Here, during Conrad’s plea colloquy the district court adduced that the plea agreement
 6   contained an appeal waiver, Conrad said he understood the plea agreement, and Conrad’s lawyer
 7   told the district court that he had thoroughly advised Conrad as to the consequences of his guilty
 8   plea. We find no plain error in the district court’s acceptance of Conrad’s guilty plea because
 9   Conrad has made no showing that but for the alleged error, he would not have pleaded guilty.
10   Indeed, in this Court he has stated that “[a]fter consulting with appellate counsel, Conrad has
11   determined not to seek on this appeal to overturn his guilty plea on the grounds that the appellate
12   waiver was neither knowing nor voluntary, or on any other grounds.” (Conrad brief on appeal at
13   24 n. 1)
14
15           In this case, the plea agreement included no stipulated Guidelines calculation, instead
16   expressly noting Conrad’s consent to judicial factfinding “with respect to any and all sentencing
17   factors and issues.” App’x at 47. Thus, the district court did not sentence Conrad in a manner
18   unanticipated by the plea agreement, but simply increased the offense level based on its
19   acceptance of factual findings included in the PSR (which were themselves based, at least in
20   part, on Conrad’s own statements). Conrad was not deprived of the benefit of his bargain, and
21   thus the appeal waiver is enforceable. We note Conrad’s additional statement that he “reserves
22   his right to raise this and any other issue in a habeas petition pursuant to 28 U.S.C. section
23   2255.” (Conrad brief on appeal at 24 n. 1) Nothing in the present order endorses such an
24   attempted reservation of the ability to raise in collateral proceedings any claims covered by his
25   appeal waiver or any other claims he has deliberately bypassed on this direct appeal, see, e.g.,
26   Bousley v. United States, 523 U.S. 614, 622 (1998) (“Where a defendant has procedurally
27   defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if
28   the defendant can first demonstrate either cause and actual prejudice, . . . or that he is actually
29   innocent . . . .” (internal quotation marks omitted)): Campino v. United States, 968 F.2d 187,
30   189-90 (2d Cir. 1992).
31
32            In any event, even were the Court to reach the merits of Conrad’s appeal, we find that
33   such an appeal would be without merit. Conrad argues that the district court committed plain
34   error by basing its sentence “on the clearly erroneous supposition that Conrad was a distributor
35   of child pornography.” (Conrad brief on appeal at 22) In United States v. Reingold, our Court
36   held that the distribution enhancement under U.S.S.G. § 2G2.2(b)(3)(F) applies when a
37   defendant “knowingly plac[es] child pornography files in a shared folder on a peer-to-peer
38   file-sharing network . . . even if no one actually obtains an image from the folder.” 731 F.3d 204,
39   229 (2d Cir. 2013) (internal quotation marks and citation omitted). There is no requirement of
40   intent to distribute for § 2G2.2(b)(3)(F) to apply, but there is a knowledge requirement: the
41   defendant must know that depositing files into the folder will make the files available to others.
42   Id. Here, Conrad acknowledged in his interview with the probation office that his use of peer-to-
43   peer programs left the downloaded files on his computer open to sharing with others. This is
44   sufficient to support the district court’s factual finding that Conrad was a distributor of child
45   pornography.
46
47

                                                      3
1          We have considered the remainder of Conrad’s arguments and find them to be without
2   merit. Accordingly, the appeal is hereby AFFIRMED as to Conrad’s term of supervised release,
3   and DISMISSED in all other respects.
4
5                                                    FOR THE COURT:
6                                                    Catherine O’Hagan Wolfe, Clerk
7




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