08-4248-cr
United States v. Flaquer

                                      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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 19th day of January, two thousand and ten.

PRESENT:

          AMALYA L. KEARSE ,
          JOSÉ A. CABRANES,
          PETER W. HALL,
                               Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA ,

                     Appellee,

                     -v.-                                                                  No. 08-4248-cr

MIGUEL FLAQUER ,

                     Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FOR DEFENDANT-APPELLANT:                                                                   B. ALAN SEIDLER , New York, NY.

FOR APPELLEE:                                                                              FELICE M. DUFFY , Assistant
                                                                                           United States Attorney (Nora R.
                                                                                           Dannehy, United States Attorney
                                                                                           for the District of Connecticut,
                                                                                           William J. Nardini, Assistant
                                                                                           United States Attorney, on the brief)
                                                                                           Office of the United States
                                                                                           Attorney for the District of
                                                                                           Connecticut, CT.

                                                                      1
      Appeal from a July 30, 2008 order of the United States District Court for the District of
Connecticut (Alan H. Nevas, Judge).

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

         Defendant-appellant Miguel Flaquer (“defendant”) was convicted pursuant to a guilty plea
entered on June 20, 2006 of conspiracy to distribute 5,000 grams or more of cocaine, in violation of 21
U.S.C. § 846. On July 30, 2008, the District Court conducted a sentencing hearing and sentenced
defendant principally to a within-Guidelines sentence of 168 months’ imprisonment. We assume the
parties’ familiarity with the remaining facts, procedural history, and issues on appeal.

        On appeal, defendant argues that (1) the government breached the plea agreement by arguing for
a role enhancement at sentencing, (2) that defense counsel was ineffective for failing to claim that the
government breached the plea agreement, (3) the District Court erred in finding that the government
proved that defendant was a supervisor and in applying a two-point enhancement for that role in the
offense, and (4) the District Court erred by concluding that a within-Guideline sentence was reasonable.

         We review “interpretations of plea agreements . . . in accordance with principles of contract
law.” United States v. Griffin, 510 F.3d 354, 360 (2d Cir. 2007) abrogated on other grounds. In determining
whether the government has breached a plea agreement, we look to the “reasonable understanding of
the parties as to the terms of the agreement,” and “any ambiguities in the agreement must be resolved in
favor of the defendant.” Id. (internal quotation marks omitted). Where, as here, a defendant has not
preserved a claim that his plea agreement was breached, we review only for plain error. See Puckett v.
United States, 129 S.Ct. 1423, 1428-33 (2009). To prevail on plain error review, a defendant must show
that (1) there is error, (2) it is plain, (3) it affects a substantial right, and (4) it seriously affects the fairness
of the judicial proceedings, resulting in a miscarriage of justice. See United States v. Zvi, 168 F.3d 49, 58
(2d Cir. 1999).

        We cannot say that any error existed in the instant case because the government did not breach
the plea agreement in advocating for a role enhancement. Defendant’s plea agreement contained no
guideline stipulations or guideline range, nor did it address which enhancements may or may not apply
to defendant’s case. The plea agreement is also silent on what arguments the government was able to
make during the sentencing proceedings. Rather, the agreement stated that ultimately the District Court
was only “required to consider [the] Sentencing Guidelines . . . to tailor an appropriate sentence,” App’x
at 26, and that the government “expressly reserve[d] its right to address the [District] Court with respect
to an appropriate sentence to be imposed in this case,” id. at 27. Accordingly, we cannot conclude that
the government breached the plea agreement by arguing for a role enhancement during the sentencing
hearing.

        In any event when it had become clear that there was an issue as to defendant’s role in the
offense, the District Court offered to allow defendant to withdraw his plea of guilty, which he declined.
(See Sentencing Tr. July 10, 2008, at 15-16; sentencing Tr. July 30, 2008 at 147-48. In these
circumstances, even if there had been error, we could not conclude that it affected defendant’s
substantial rights or that there was unfairness in the judicial proceedings.
                                                      2
        Because we find that no breach of the plea agreement occurred and that defendant’s rights were
not substantially affected, we also conclude that defense counsel was not ineffective for failing to claim
that the government breached the agreement.

         Defendant also argues that the District Court erred in applying a two-point role enhancement
and concluding that a within-Guideline sentence was reasonable. We review challenges to the
reasonableness of a sentence, “whether inside, just outside, or significantly outside the Guidelines range
. . . under a deferential abuse-of-discretion standard.” Gall v. United States, 128 S. Ct. 586, 591 (2007).

         “A district court has abused its discretion if it based its ruling on an erroneous view of the law
or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located
within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (internal
quotation marks, citations, and alterations omitted); see United States v. Cavera, 550 F.3d 180, 188 n.5
(2008) (en banc) (calling for a “particularly deferential form of abuse-of-discretion review” in evaluating
a sentence’s procedural and substantive reasonableness), cert. denied, 129 S. Ct. 2735 (2009).

        The District Court did not err—much less “abuse its discretion”—in imposing a 168-month
within-Guideline sentence in light of the circumstances and facts in the record. The record shows that
the District Court considered a properly calculated advisory guidelines range, properly considered the
factors listed in 18 U.S.C. § 3553(a), and stated its reasons for assigning the sentence it did.

       We have considered each of defendant’s arguments on appeal and find them to be without merit.

                                            CONCLUSION

       For the reasons stated above, we AFFIRM the judgment of the District Court.


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

                                               By _______________________________




                                                    3
