12-33-cr
United States v. Reddy
                          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 18th day of June, two thousand thirteen.

PRESENT: CHESTER J. STRAUB,
         REENA RAGGI,
         CHRISTOPHER F. DRONEY,
                    Circuit Judges.

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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                              No. 12-33-cr

DEVI REDDY,
                                 Defendant-Appellant.
----------------------------------------------------------------------


FOR APPELLANT:                           Edward J. McQuat, The Blanch Law Firm, New York,
                                         New York.

FOR APPELLEE:                            Ryan P. Poscablo, Assistant United States Attorney, for
                                         Preet Bharara, United States Attorney for the Southern
                                         District of New York, New York, New York.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Richard M. Berman, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal of the judgment entered on December 20, 2011, is DISMISSED.

       Former licensed physician Devi Reddy seeks vacatur of the below-Guidelines

60-month prison term imposed for his participation in a conspiracy to distribute controlled

substances without medical justification. See 21 U.S.C. §§ 812, 841(a), 841(b)(1)(C). In

pursuing this appeal, Reddy confronts a high hurdle: his plea agreement waiver of the right

to appeal or otherwise to challenge a prison sentence at or below 108 months. Reddy

contends that the waiver is not binding here because he failed to receive constitutionally

effective assistance of counsel in connection with both his guilty plea and his sentence. See

Hill v. Lockhart, 474 U.S. 52, 57 (1985); Strickland v. Washington, 466 U.S. 668, 690–92

(1984). We assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to dismiss the appeal.

       The law in this circuit is clear that “in no circumstance may a defendant, who has

secured the benefits of a plea agreement and knowingly and voluntarily waived the right to

appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.”

United States v. Pearson, 570 F.3d 480, 485 (2d Cir. 2009) (alterations and internal quotation

marks omitted); see also United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (holding

that even “meaningful errors are insufficient to void an appeal waiver” where sentence

neither is based on unconstitutional factors nor represents abdication of judicial

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responsibility); United States v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011). This rule

pertains to claims of ineffective assistance of counsel, unless the record convincingly shows

that the waiver itself was the result of ineffective assistance. See United States v. Monzon,

359 F.3d 110, 118–19 (2d Cir. 2004) (stating further that any record ambiguity as to merits

of ineffective assistance claim should be resolved in favor of enforcing waiver and

dismissing appeal); accord United States v. Oladimeji, 463 F.3d 152, 155 (2d Cir. 2006).

       Here, the record does not support a conclusion that the waiver of appellate rights was

a product of counsel’s ineffective assistance or that it is otherwise invalid. See, e.g., United

States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). At the plea allocution, Magistrate

Judge Gorenstein specifically asked Reddy whether he was satisfied with counsel’s

representation, whether he was pleading guilty voluntarily, and whether he understood that,

under the plea agreement, he was giving up the right to appeal or otherwise challenge a

sentence of 108 months or less. Reddy answered all of these questions in the affirmative.

Further, in advising Reddy of his appellate rights at sentencing, Judge Berman reiterated the

plea agreement provision waiving the right to appeal a sentence within or below the range

of 87 to 108 months. He then asked whether Reddy understood his appeal rights, to which

Reddy answered yes.

       Reddy nevertheless maintains that he should be excused from his waiver because

counsel (1) induced Reddy’s guilty plea with unwarranted promises of a non-incarceratory

sentence, including by representing that the government would seek a downward departure

due to Reddy’s attempts at cooperation; (2) stipulated to a higher drug quantity than was

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warranted; (3) failed to object to the district court’s quantity calculation at sentencing; and

(4) failed to argue for mitigation of sentence based on Reddy’s loss of his medical license

and practice. The last two omissions, postdating the plea, cannot have rendered involuntary

the waiver of appellate rights in the plea agreement. Nor can such a conclusion be drawn

from counsel’s purported ineffectiveness in stipulating to the challenged drug quantity

calculations as Reddy himself fails to draw any causal connection between the two matters.

       Insofar as Reddy claims that counsel induced his guilty plea with promises of a

non-incarceratory sentence, such an argument, if successful, would reasonably extend to the

plea agreement’s appellate waiver. The appropriate relief would not simply be vacatur of

Reddy’s sentence, however, but vacatur of his guilty plea, thereby putting both him and the

prosecution back in the positions they were in before the invalid plea was entered. See

generally United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004) (holding that entire plea

agreement may be unenforceable where repudiated in part by defendant); United States v.

Liguori, 430 F.2d 842, 851 (2d Cir. 1970) (Lumbard, C.J., concurring) (observing that

defendant contesting guilty plea may not selectively assert benefits of bargain while avoiding

“reciprocal burden”). It is by no means clear that Reddy seeks such relief. We need not

pursue this matter because, in any event, the alleged ineffectiveness of counsel in inducing

entry into the plea agreement is hardly clear on the record before us.

       At his plea allocution, Reddy stated under oath that no promises had been made to get

him to plead guilty other than those in the written plea agreement, a document that provided



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no assurance of a non-incarceratory sentence.1 A defendant cannot easily walk away from

such “[s]olemn declarations in open court,” which, as the Supreme Court has instructed, are

accorded such “a strong presumption of verity” that subsequent, contrary “conclusory

allegations” are “subject to summary dismissal, as are contentions that in the face of the

record are wholly incredible.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Whether

Reddy can produce more than conclusory allegations both to support the claim that his guilty

plea was induced by counsel’s unwarranted promises of a non-incarceratory sentence and to

explain his contrary sworn statement at the time of his plea are not matters warranting further

examination on this direct appeal. Any such claims that can be made in good faith are better

presented in a habeas corpus petition under 28 U.S.C. § 2255. See Massaro v. United States,

538 U.S. 500, 504 (2003); United States v. Oladimeji, 463 F.3d at 154.

       We conclude on the record before us that Reddy cannot appeal the 60-month sentence

imposed in this case because he has failed to offer any meritorious argument for excusing him from

his plea agreement waiver of the right to appeal a sentence at or below 108 months.

       Accordingly, the appeal is hereby DISMISSED.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




       1
         We further note that on none of the occasions on which Reddy was afforded an
opportunity to speak at sentencing, even after Judge Berman stated that a non-incarceratory
sentence was “out of the question,” Sentencing Tr. 6, did Reddy indicate that he had relied
on the promise of such a sentence in pleading guilty.

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