16-3801
United States v. Lopez

                             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, at 40 Foley Square, in the City of New
York, on the 7th day of March, two thousand eighteen.

PRESENT:
                ROBERT A. KATZMANN,
                     Chief Judge,
                PIERRE N. LEVAL,
                     Circuit Judge,
                ANDREW L. CARTER, JR.,*
                     District Judge.


UNITED STATES OF AMERICA,

                         Appellee,

                v.                                                        No. 16-3801

JOSE JUAN LOPEZ,

                         Defendant-Appellant.


For Appellee:                                            TIFFANY LEE (Joseph Karaszewksi, on the
                                                         brief), for James P. Kennedy, Jr., Acting

        *
          Judge Andrew L. Carter, Jr., of the United States District Court for the Southern District of New
York, sitting by designation.

                                                     1
                                                     United States Attorney for the Western District
                                                     of New York, Buffalo, NY.

For Defendant-Appellant:                             JAY S. OVSIOVITCH, Federal Public Defender’s
                                                     Office, Rochester, NY.


       Appeal from a judgment of the United States District Court for the Western District of

New York (Siragusa, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant Jose Juan Lopez appeals from a judgment of the Western District of New

York (Siragusa, J.), entered November 4, 2016, sentencing him to 24 months’ imprisonment on

one count of possessing heroin with intent to distribute, 21 U.S.C. §§ 841(a) & (b)(1)(C), and 60

months’ imprisonment on one count of possessing a firearm in furtherance of a drug trafficking

crime, 18 U.S.C. §§ 924(c)(1)(A), to be served consecutively. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

       During the nine months following Lopez’s January 2015 guilty plea, he tested positive

for drug use three times, removed his electronic monitoring bracelet, and absconded. Based on

this conduct, at sentencing the government opposed the offense-level reduction for acceptance of

responsibility and sought a two-level enhancement for obstruction of justice. Lopez argues that

the government’s position at sentencing breached his plea agreement, which stated that the

government would not oppose a recommendation for a two-level reduction in his offense level

based upon his acceptance of responsibility, resulting in a Guidelines range of 12 to 18 months’




                                                 2
imprisonment for the heroin count.1 (The parties agree that Lopez is subject to a mandatory

minimum of 60 months’ imprisonment for the gun count.) In support of its changed position, the

government relies on a provision in the plea agreement that allows the government to “modify its

position with respect to any sentencing recommendation or sentencing factor” if “subsequent to

th[e] agreement the government receives previously unknown information, including conduct

and statements of the defendant, regarding the recommendation or factor.” App. at 19 ¶ 19(d).

       As we have previously recognized, “[t]here is nothing ambiguous in [this] reservation of

rights.” United States v. Maldonado, 522 F. App’x 72, 73 (2d Cir. 2013) (summary order).

Although Lopez insists that the word “previously” is concerned with events that occurred before

the agreement was made, this interpretation finds no support in the text. “Previously” is an

adverb meaning “[a]t a previous or preceding time.” Oxford English Dictionary at 448 (2d ed.

1989). Here the adverb modifies the phrase “unknown information.” In other words, the phrase

“previously unknown information” means information that is new to the government when it is

received. Paragraph 19(d) is further limited by the phrase “subsequent to this agreement,” which

limits the government to relying on new information that was received after the plea agreement

was executed. Moreover, the fact that some plea agreements entered into by the U.S. Attorney’s

Office for the Western District of New York expressly state that the government may modify its

position if it “receives previously unknown information, including conduct and statements by the

defendant subsequent to this agreement, regarding the recommendation or factor,” Lopez Br. at

23 (emphasis partially omitted), is not to the contrary.




       1
          The record is inconsistent regarding whether acceptance of responsibility would have
warranted a two- or three-level reduction. Because nothing in this appeal turns on this
distinction, we do not address it.
                                                  3
       We have considered all of defendant’s arguments and have found in them no basis for

reversal. Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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