09-5358-cr
United States v. Buissereth

                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                   August Term, 2010

(Argued: February 17, 2011                                                                  Decided: March 15, 2011)

                                                 Docket No. 09-5358-cr

UNITED STATES OF AMERICA,

                  Appellee,

                  v.

PIERRE BUISSERETH,

                  Defendant-Appellant.


Before: CABRANES and CHIN, Circuit Judges, and CROTTY, District Judge.*

        Pierre Buissereth appeals from a November 9, 2009 judgment of conviction entered in the
United States District Court for the Eastern District of New York (Sandra J. Feuerstein, Judge).
Buissereth was sentenced principally to 100 months of imprisonment after pleading guilty to one count
of possession with intent to distribute cocaine and five grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B). We hold that, notwithstanding errors by the District Court during
Buissereth’s sentencing proceeding, his appeal is foreclosed by a valid and enforceable appeal waiver in
the written plea agreement entered into by Buissereth. Accordingly, the appeal is DISMISSED.

                                     MARSHALL A. MINTZ (Laura A. Oppenheim, on the brief), Mintz &
                                          Oppenheim LLP, New York, NY, for Defendant-Appellant.

                                     WILLIAM CAMPOS, Assistant United States Attorney (Loretta E. Lynch,
                                           United States Attorney, on the brief, and Susan Corkery, Assistant
                                           United States Attorney, of counsel), Office of the United States
                                           Attorney for the Eastern District of New York, Brooklyn, NY,
                                           for Appellee.

         *
            The Honorable Paul A. Crotty, of the United States District Court for the Southern District of New York,
sitting by designation.

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JOSÉ A. CABRANES, Circuit Judge:

        Defendant-appellant Pierre Buissereth appeals from a November 9, 2009 judgment of

conviction entered by the United States District Court for the Eastern District of New York (Sandra J.

Feuerstein, Judge), sentencing him principally to 100 months’ imprisonment. Buissereth contends that

his sentence is procedurally unreasonable in light of the District Court’s failure to, among other things,

(1) rule on Buissereth’s various objections to the Presentence Investigation Report (“PSR”); (2)

calculate a sentencing range under the Sentencing Guidelines; and (3) consider the relevant factors set

forth in 18 U.S.C. § 3553(a). The government argues that because Buissereth knowingly and voluntarily

signed a valid and enforceable appeal waiver as part of his written plea agreement, he has waived his

right to appeal. We agree, and therefore dismiss the appeal.

                                           BACKGROUND

        Pursuant to a written plea agreement dated March 17, 2009, Buissereth pleaded guilty to one

count of possession with intent to distribute cocaine and five grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) 841(b)(1)(B). The plea agreement calculated an anticipated Guidelines

range of 100 to 125 months based on Buissereth’s projected offense level and Criminal History

Category. The plea agreement also contained an appeal-waiver provision, under which Buissereth

agreed “not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C.        § 2255 or

any other provision, the conviction or sentence in the event that the Court imposes a term of

imprisonment of 137 months or below.” That is, Buissereth agreed not to appeal his sentence if the

District Court sentenced him to 137 months’ imprisonment or less. The District Court sentenced

Buissereth to 100 months’ imprisonment—the lowest possible sentence within the anticipated

Guidelines range and well within the sentencing range contemplated by the appeal waiver.




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        At Buissereth’s sentencing proceeding, the District Court began by addressing an issue that had

recently surfaced with regard to Buissereth’s legal counsel. After Buissereth’s plea agreement had been

executed, but before the sentencing hearing, one of Buissereth’s attorneys (not the lead attorney)

applied for a job in the United States Attorney’s Office for the Eastern District of New York—the very

office prosecuting Buissereth in this case. The District Court ascertained that Buissereth understood

that this potential conflict of interest could have negatively affected his attorney’s performance at

sentencing. The District Court then verified that Buissereth had been fully informed by his attorneys

about this matter and, in response to the District Court’s inquiries, Buissereth confirmed that he

continued to have “full faith” in the representation he was receiving.

        The District Court then shifted its attention to Buissereth’s sentence. Following presentations

by counsel and Buissereth’s allocution, the District Court, in relevant part, pronounced and explained

its sentence as follows: “Taking into account everything that was said and the records in this case and

of course all of [Buissereth’s counsel’s] eloquent arguments, the sentence will be as follows: 100 months

custody . . . .” Subsequently, in its written judgment following the sentencing hearing, the District

Court expressly adopted the findings of the PSR and identified an applicable Guidelines range

consistent with that anticipated, if not stipulated, by the government and Buissereth in the plea

agreement.

                                              DISCUSSION

        On appeal, Buissereth asserts that the appeal-waiver provision is unenforceable because the

District Court failed to secure a valid waiver of his Sixth Amendment right to be represented by

“conflict-free” counsel. It is well established that “whenever the possibility arises that a counsel’s ability

to represent a particular defendant has been tainted by a conflict of interest,” Williams v. Meachum, 948

F.2d 863, 867 (2d Cir. 1991), trial courts should:


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            advise the defendant of his right to . . . conflict-free representation,
            instruct the defendant as to problems inherent in being represented by an
            attorney with divided loyalties, allow the defendant to confer with his
            chosen counsel, encourage the defendant to seek advice from
            independent counsel, and allow a reasonable time for the defendant to
            make his decision.

United States v. Curcio, 680 F.2d 881, 890 (2d Cir. 1982); see also United States v. Iorizzo, 786 F.2d 52, 59 (2d

Cir. 1986). In evaluating a district court’s fidelity to this guidance, however, “we are more concerned

with whether the defendant appreciated his predicament and made a properly informed choice than we

are with whether the trial judge recited any particular litany of questions.” United States v. Jenkins, 943

F.2d 167, 176 (2d Cir. 1991).

        Here, the record reveals that the District Court properly ensured that Buissereth was fully

informed of the potential conflict of interest involving one of his attorneys and that Buissereth’s

subsequent waiver of this issue was both “knowing” and “intelligent.” Williams, 948 F.2d at 867. Like

the defendant in Jenkins, “[i]t is abundantly clear from [Buissereth’s] responses to Judge [Feuerstein’s]

questions that [Buissereth] completely understood the potential risks arising from [his counsel’s]

application to the U.S. Attorney’s Office.” Jenkins, 943 F.2d at 176. Accordingly, we reject Buissereth’s

argument that the appeal-waiver provision is unenforceable because of counsel’s purported conflict of

interest.

        Buissereth also argues that the appeal-waiver provision is unenforceable because the sentencing

court abdicated its “judicial responsibility” by failing to make rulings and findings at his sentencing

hearing. See United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). Although this argument fails,

we cannot help but observe that Buissereth’s sentencing hearing left much to be desired. Among other

things, the District Court failed to (1) rule on the numerous filed objections to the PSR; (2) rule on the

requests for downward departures and a variance; (3) adopt the findings of the PSR; (4) mention, much

less articulate its consideration of, the relevant factors set forth in 18 U.S.C. § 3553(a); or (5) calculate

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an applicable sentencing range under the Sentencing Guidelines. In its written judgment following the

sentencing hearing, the District Court did expressly adopt the findings of the PSR and identify the

applicable sentencing range. While this was helpful, the District Court still did not do all that it should

have. Where, as here, the Guidelines range exceeds 24 months, the sentencing court has a statutory

obligation “at the time of sentencing, [to] state in open court the reasons for its imposition of the

particular sentence.” 18 U.S.C. § 3553(c). Moreover, while adopting the findings of the PSR is

ordinarily sufficient to satisfy § 3553(c), the findings must be adopted in “open court.” United States v.

Molina, 356 F.3d 269, 277 (2d Cir. 2004).

         While Buissereth’s appeal waiver did not relieve the District Court of its responsibility to follow

the procedural requirements related to the imposition of a sentence, the appeal waiver does preclude

this Court from correcting the errors alleged to have occurred below.1 See United States v. Arevalo, 628

F.3d 93, 97 (2d Cir. 2010) (holding that the district court’s failure to make findings regarding disputed

portions of the PSR did not render the appeal waiver unenforceable); United States v. Granik, 386 F.3d

404, 412 (2d Cir. 2004) (“Knowing and voluntary appellate waivers included in plea agreements must be

enforced because, if they are not, the covenant not to appeal becomes meaningless and would cease to

have value as a bargaining chip in the hands of defendants.” (quotation marks omitted)); United States v.

Yemitan, 70 F.3d 746, 747-48 (2d Cir. 1995) (upholding plea waiver where the Guidelines range

exceeded 24 months and the sentencing court failed to state reasons for imposing sentence as required

by § 3553(c)).

         An appeal waiver, however, does have some limits. As we have held:

         [A] defendant may have a valid claim that the waiver of appellate rights is unenforceable . . .
         when [1] the waiver was not made knowingly, voluntarily, and competently, [2] when the

          1
            In relevant part, the appeal waiver contained in the plea agreement of March 17, 2009, states: “[Buissereth]
agrees not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the
conviction or sentence in the event that the Court imposes a term of imprisonment of 137 months or below. This
waiver is binding without regard to the sentencing analysis used by the Court.”
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       sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or
       other prohibited biases, [3] when the government breached the plea agreement, or [4] when the
       sentencing court failed to enunciate any rationale for the defendant’s sentence, thus amounting
       to an abdication of judicial responsibility subject to mandamus.”

Gomez-Perez, 215 F.3d at 319 (quotation marks and citations omitted).

       Indeed, because “[p]lea agreements are subject to the public policy constraints that bear upon

the enforcement of other kinds of contracts,” we have recognized that “a defendant who waives his

right to appeal does not subject himself to being sentenced entirely at the whim of the district court.”

Yemitan, 70 F. 3d at 748 (quotation marks omitted). “At some point . . . an arbitrary practice of

sentencing without [proffered] reasons would amount to an abdication of judicial responsibility subject

to mandamus,” and the appeal waiver will not be enforced. Id. This case, however, does not present

such an extraordinary circumstance. Although the District Court should have made explicit findings

and rulings and explained its sentence in open court, it is apparent from the transcript of the sentencing

hearing that the District Court gave due consideration to Buissereth’s sentencing arguments. Indeed,

the sentence of 100 months’ imprisonment was reasonably foreseeable at the time of Buissereth’s plea

and undoubtedly taken into account by Buissereth and his counsel in entering the plea agreement.

Thus, the sentence imposed surely was not “fundamentally unfair,” Gomez-Perez, 215 F.3d at 320.

                                            CONCLUSION

       We have considered all of Buissereth’s arguments and find them to be without merit.

Buissereth’s appeal is hereby DISMISSED.




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