09-0034-cr
USA v. Antonetty (Olivera)

                            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 W ITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH 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 Courthouse, 500 Pearl Street, in the City of New York, on the 20th day
of April, two thousand ten.

Present:
            GUIDO CALABRESI,
            CHESTER J. STRAUB,
            ROBERT A. KATZMANN,
                              Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                Appellee,

                       v.                                   No. 09-0034-cr


JORGE OLIVERA, ALSO KNOWN AS GEORGIE, ALSO KNOWN AS GEORGE,

                Defendant-Appellant.

________________________________________________

For Defendant-Appellant:      NORMAN P. EFFMAN , Warsaw, NY

For Appellee:                 STEPHAN J. BACZYNSKI, Assistant United States Attorney, for
                              Kathleen M. Mehltretter, United States Attorney for the Western
                              District of New York, Buffalo, NY
       Appeal from the United States District Court for the Western District of New York
(Skretny, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the appeal is DISMISSED.

       Defendant-appellant Jorge Olivera appeals from a judgment of the United States District

Court for the Western District of New York (Skretny, J.), entered December 30, 2008,

sentencing Olivera to 168 months in prison, pursuant to a plea agreement, for his role in a

heroin-distribution conspiracy. On appeal, Olivera argues that the district court violated

principles of due process and abused its discretion in refusing to hold, prior to resentencing, an

evidentiary hearing regarding the extent of the assistance that he and his family provided to the

government. We assume the parties’ familiarity with the underlying facts and procedural history

of the case.

         At the outset, the government contends that the plea agreement’s explicit provision

waiving Olivera’s right of appeal precludes review by this Court. We agree. To be enforceable,

guilty pleas and waivers of the right to appeal must be “knowingly, voluntarily, and competently

provided by the defendant.” United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000).

Olivera asserts that the waiver in his plea agreement was not knowing because the parties to the

agreement entered into it believing that the court, in granting a downward departure, could

consider factors other than Olivera’s substantial assistance.

       Olivera’s argument is unavailing. There is no indication that the parties had in mind a

reduction based on non-assistance considerations. Neither the agreement nor the transcript of the

plea allocution mentions factors for downward reduction other than substantial assistance.

Moreover, the plea agreement explicitly recognized that any downward departure was left to the

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discretion of the district court. Thus, upon entering into the agreement, Olivera could have had

no settled expectation that the court would depart at all, let alone that it would consider factors

other than substantial assistance. See United States v. Rosen, 409 F.3d 535, 548 (2d Cir. 2005).

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

Accordingly, we DISMISS his appeal as waived.



                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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