     10-4866-cr
     United States v. Kelly


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 11th day of October, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT D. SACK,
 9                REENA RAGGI,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-4866-cr
17
18       JOHN RAMIREZ,
19                Defendant
20
21       JONATHAN KELLY,
22                Defendant-Appellant.
23       - - - - - - - - - - - - - - - - - - - -X
24
25
26
27

                                                  1
 1   FOR APPELLANT:             Robert Peter LaRusso, Mineola,
 2                              New York.
 3
 4   FOR APPELLEES:             Susan Corkery, Berit W. Berger,
 5                              for Loretta E. Lynch, United
 6                              States Attorneys Office for the
 7                              Eastern District of New York,
 8                              New York, New York.
 9
10        Appeal from a judgment of the United States District
11   Court for the Eastern District of New York (Johnson, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Jonathan Kelly appeals from a judgment of conviction,
18   following a guilty plea to one count of sex trafficking of a
19   minor and one count of conspiracy to engage in sex
20   trafficking. We assume the parties’ familiarity with the
21   underlying facts, the procedural history, and the issues
22   presented for review.
23        Kelly pled guilty with the benefit of a plea agreement
24   in which he agreed “not to file an appeal or otherwise
25   challenge . . . the conviction or sentence in the event that
26   the Court imposes a term of imprisonment of 188 months or
27   below.” The district court imposed a sentence of 188
28   months. Kelly appeals the procedure the district court used
29   in reaching this sentence. As explained below, Kelly waived
30   the right to make such an appeal.
31
32   [1] Kelly argues that the district court erred by not
33   determining the applicable Sentencing Guidelines range.
34   However, though an appeal waiver does “not relieve the
35   District Court of its responsibility to follow the
36   procedural requirements related to the imposition of a
37   sentence, the appeal waiver does preclude this Court from
38   correcting the errors alleged to have occurred below.”
39   United States v. Buissereth, 638 F.3d 114, 117 (2d Cir.
40   2011). One such error is a district court’s failure to
41   “calculate an applicable sentencing range under the
42   Sentencing Guidelines.” Id. Accordingly, Kelly, by
43   agreeing to an appeal waiver, waived his right to make such
44   an appeal.
45
46   [2] Kelly argues that the district court erred by adopting a
47   presentence investigative report (“PSR”) that was factually

                                  2
 1   inaccurate. The PSR contained an enhancement for “the use
 2   of a computer or an interactive computer service to . . .
 3   entice, encourage, offer, or solicit a person to engage in
 4   prohibited sexual conduct with the minor,” pursuant to
 5   U.S.S.G. § 2G1.3(b)(3)(B), which the government agreed was
 6   inapplicable. The PSR also contained a role adjustment for
 7   acting as “organizer, leader, manager, or supervisor in any
 8   criminal activity,” pursuant to U.S.S.G. § 3B1.1(c), on
 9   which the government took no position.
10        We are “aware of no case that has held that the mere
11   existence of inaccurate information in a presentence report,
12   rather than a district court’s reliance on such information
13   in sentencing . . . is an error sufficient to void an appeal
14   waiver.” United States v. Arevalo, 628 F.3d 93, 99 (2d Cir.
15   2010).
16        Here, the district court did not rely on the PSR. In
17   its written judgment, the court did check a box accepting
18   the PSR. But while the PSR, with the possible inaccuracies,
19   recommended a Guidelines range of 235 to 293 months, the
20   court sentenced Kelly to 188 months. In reaching this
21   sentence, the court repeatedly stated that it was looking to
22   the plea agreement. Any inaccuracies in the PSR therefore
23   did not impact Kelly’s sentence.
24
25   [3] Kelly argues that the enhancement in the plea agreement
26   for undue influence of a minor to engage in prohibited
27   sexual conduct, pursuant to U.S.S.G. § 2G1.3(b)(3)(B), is
28   not factually supported when the minor was already reduced
29   to prostitution, and that the district court erred by
30   ignoring his objection and by basing the sentence on the
31   plea agreement that contained the objectionable enhancement.
32        Regardless of whether the enhancement was supported,
33   Kelly waived the challenge. In Arevalo, this Court stated
34   that a defendant’s “waiver of his right to ‘challenge . . .
35   [his] . . . sentence’ plainly includes a waiver of his right
36   to claim errors arising out of the District Court's crafting
37   of [his] sentence.” 628 F.3d at 97 (internal citations
38   omitted) (ellipses and brackets in original). This is so
39   because “[p]lea agreements are construed according to
40   contract law principles.” United States v. Yemitan, 70 F.3d
41   746, 747 (2d Cir. 1995). Kelly agreed to waive all appeals
42   for a sentence of 188 months or below, and the court
43   sentenced Kelly to 188 months. Even if a plea agreement
44   contains a “mutual mistake,” it is enforceable. United
45   States v. Rosen, 409 F.3d 535, 548 (2d Cir. 2005).
46


                                  3
 1        Finding no merit in Kelly’s remaining arguments, we
 2   hereby AFFIRM the judgment of the district court.
 3
 4
 5                              FOR THE COURT:
 6                              CATHERINE O’HAGAN WOLFE, CLERK
 7
 8
 9
10




                                  4
