14-3661-cr
United States v. Morales

                                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, 40 Foley Square, in the City of New York on the
22nd day of January, two thousand eighteen.

Present:   ROSEMARY S. POOLER,
            GERARD E. LYNCH,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                           v.                                                  14-3661-cr

RAMON MORALES, a/k/a Sealed Defendant 2, a/k/a Seven,

                        Defendant-Appellant.1
_____________________________________________________

Appearing for Appellant:          John S. Wallenstein, Garden City, NY.

Appearing for Appellee:           Noah Falk, Assistant United States Attorney (Anna M. Skotko,
                                  Assistant United States Attorney, on the brief), for Joon H. Kim,
                                  Acting United States Attorney for the Southern District of New
                                  York, New York, NY.

      Appeal from the United States District Court for the Southern District of New York
(Furman, J.).
1
    The Clerk of the Court is respectfully directed to amend the caption as above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Ramon Morales appeals from the September 23, 2014 judgment of conviction entered in
the United States District Court for the Southern District of New York (Furman, J.), following
Morales’s plea of guilty to one count of conspiracy to distribute and possess with intent to
distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and one count of using
and carrying a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. §
924(c). Morales was sentenced principally to 216 months’ imprisonment. We held this case
pending decisions by the Supreme Court in Beckles v. United States, 137 S.Ct. 886 (2017), and
our Court in United States v. Jones, 2017 WL 4456719 (2d Cir. 2017), as amended October 5,
2017. The parties submitted supplemental briefing on the issues of (1) whether, in light of the
appeal waiver contained in the plea agreement, Morales may challenge the district court’s
determination that Morales qualified as a career offender under U.S.S.G. § 4B1.1; and (2)
whether, following Jones, a conviction for robbery in the third degree in New York is a “crime
of violence” for purposes of determining whether a defendant is a career offender under the
Guidelines. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

         As part of his plea agreement with the government, Morales agreed that that he would not
file a direct appeal, mount a collateral challenge, or seek a sentence modification of any sentence
imposed on him within or below the stipulated Guideline range of 322 to 387 months. He was
sentenced to 216 months’ imprisonment—well under the stipulated range—such that his
appellate waiver is binding absent some breach of that agreement. See, e.g., United States v.
Salcido-Contreras, 990 F.2d 51 (2d Cir. 1993) (noting that “knowing and voluntary waivers of a
defendant's right to appeal a sentence within an agreed Guidelines range are enforceable”).
Morales argues that the government breached the plea agreement by advocating for a higher drug
quantity than set forth in the agreement in violation of its agreement not to do so.

        Plea agreements are construed strictly against the government, and the court does not
“hesitate to scrutinize the government's conduct to ensure that it comports with the highest
standard of fairness.” United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999). “To determine
whether a plea agreement has been breached, we ‘look[ ] to the reasonable understanding of the
parties as to the terms of the agreement.’” United States v. Riera, 298 F.3d 128, 133 (2d Cir.
2002) (quoting United States v. Colon, 220 F.3d 48, 51 (2d Cir. 2000)). “When the Government
breaches a plea agreement, the defendant is entitled to either withdraw his plea or have his
agreement specifically performed.” United States v. Cimino, 381 F.3d 124, 127 (2d Cir. 2004).

        In urging that we find a breach, Morales relies heavily on our summary order in United
States v. Robinson, 634 F. App’x 47 (2d Cir. Jan. 15, 2016). There, we found that the
government breached a similar plea agreement with one of Morales’s codefendants when, in its
sentencing submission and at sentencing, it described Robinson as an active and managing
member of a high-volume drug crew. Id. at 50. We found the breach was not de minimis, as:




                                                2
               The government’s breach of the plea agreement directly affected
               the sentence. The district judge had not previously raised the
               possibility of a role enhancement, and specifically noted that the
               question had not occurred to him until after he read the
               government’s September 3 sentencing letter. The court then
               proceeded to apply the enhancement.

Id. at 51 (internal citation omitted). We then vacated the sentence and remanded for resentencing
before a different judge.

        Morales, by virtue of being sentenced after Robinson and other codefendants, stands on a
different footing. By the time Morales was sentenced, the district court raised the issue of drug
quantity and leadership in other sentencing proceedings, such that the government legitimately
anticipated the district court’s questions on the issue. Because the government simply responded
to questions that the court had already asked in related sentencing proceedings, did not advocate
for a higher sentence, and did not influence the court’s factual understanding of the amount of
crack attributable to the conspiracy, its sentencing submission did not run afoul of the plea
agreement. As a result, Morales’s appeal waiver remains in place and bars the various claims he
raises before this Court.

        We have considered the remainder of Morales’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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