12-4697-cr
United States v. Hoffman

                                      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 December, two thousand thirteen.

PRESENT:

           JOSÉ A. CABRANES,
           RICHARD C. WESLEY,
           PETER W. HALL,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                               -v.-                                                                No. 12-4697-cr

TIMOTHY HOFFMAN,

                      Defendant-Appellant
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FOR DEFENDANT-APPELLANT:                                                            Robert J. Boyle, New York, NY.

FOR APPELLEE:                                                                       Richard D. Belliss, Rajit S. Dosanjh,
                                                                                    Assistant United States Attorneys, for
                                                                                    Richard S. Hartunian, United States
                                                                                    Attorney for the Northern District of
                                                                                    New York, Syracuse, NY.




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      Appeal from the November 20, 2012 judgment of the United States District Court for the
Northern District of New York (Mae A. D’Agostino, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the November 20, 2012 judgment of the District Court be AFFIRMED.

        Defendant-Appellant Timothy Hoffman appeals from the November 20, 2012 judgment of
the District Court convicting him, on a guilty plea, of possession of a firearm by a convicted felon,
and sentencing him principally to fifteen months’ imprisonment. Hoffman contends that the
District Court erred by failing to address the waiver of the right to appeal contained in Hoffman’s
plea agreement during the plea colloquy,1 and that the fifteen-month sentence was substantively
unreasonable. Familiarity with the factual and procedural background is presumed.

                                                    DISCUSSION

         Before accepting a guilty plea, Federal Rule of Criminal Procedure 11(b)(1)(N) requires that
the court “inform the defendant of, and determine that the defendant understands . . . the terms of
any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.
R. Crim. P. 11(b)(1)(N); United States v. Cook, 722 F.3d 477, 480 (2d Cir. 2013). Rule 11(b)(1)(N)
violations that are not objected to at the time of the plea are subject to plain error review under Rule
52(b) of the Federal Rules of Criminal Procedure. Cook, 722 F.3d at 481 (citing United States v.
Vonn, 535 U.S. 55, 58–59 (2002)). “Plain error” review requires a defendant to demonstrate that (1)
there was error, (2) the error was plain, (3) the error prejudicially affected his substantial rights, and
(4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Id.
at 481. Ultimately, to prevail a defendant must demonstrate a reasonable probability that, but for the
error, he would not have entered the plea. Id.

        It is undisputed that the District Court did not discuss the appeal waiver with Hoffman
during the plea proceeding, or even expressly confirm that the defendant had read and understood
the terms of the plea agreement. Neither party objected to this omission. While the failure to
address Hoffman’s waiver of appeal was a clear violation of Rule 11(b)(1)(N) and, thus, an error that
was “plain,” Hoffman has not argued that the error prejudicially affected his substantial rights,2 much

1Hoffman’s plea agreement waived, in relevant part, the right “to appeal or collaterally attack his conviction and any
sentence of imprisonment of 21 months or less, including . . . the reasonableness of the sentence imposed.” App’x 23.
2 Hoffman urges us to follow United States v. Murdock, 398 F.3d 491 (6th Cir. 2005), which also involved a wholesale
failure to address an appellate waiver. However, the court in Murdock explicitly rejected the notion that “a defendant
could always prevail [under the plain error inquiry] simply by alleging and proving the Rule 11 violation,” and stated that
other events might establish that the defendant knowingly entered into the plea agreement. Id. at 497-98. Here,
Hoffman does not argue that he was unaware of or failed to understand the waiver of appeal contained in the plea
agreement. Moreover, the Guidelines range of 15-21 months was discussed at the plea proceeding, and Hoffman and
his lawyer stated at the colloquy that Hoffman understood the consequences of pleading guilty. App’x 44-46.


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less that, but for the error, he would not have entered the plea. Accordingly, we conclude that the
appellate waiver is enforceable, and that Hoffman has forfeited his right to appeal his sentence of
fifteen months.3

                                                  CONCLUSION

      We have reviewed all of Hoffman’s arguments on appeal and, for the reasons set out above,
we AFFIRM the November 20, 2012 judgment of the District Court.

                                                        FOR THE COURT,
                                                        Catherine O’Hagan Wolfe, Clerk of Court




3 Although we need not address the reasonableness of the sentence, we note that the District Court’s decision to
impose the lowest term of imprisonment under the advisory guidelines―apparently based on defendant’s unwillingness
to accept “that I can’t protect my business, I can’t protect my friends from gang violence,” App’x 64-65―was not a
decision outside “the range of permissible decisions,” as would be required for us to find that the sentence was
substantively unreasonable. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks
and citation omitted).



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