United States v. Vasconcellos (Blackmore)

09-2933-cr USA v. Vasconcellos (Blackmore) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 12 th day of November, two thousand and ten. 5 6 PRESENT: J OSEPH M. M CL AUGHLIN, 7 B ARRINGTON D. P ARKER, 8 R ICHARD C. W ESLEY, 9 10 Circuit Judges. 11 12 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 -v.- 09-2933-cr 19 20 ANTHONY B. BLACKMORE, 21 22 Defendant-Appellant. 23 24 25 1 FOR APPELLANT: STEVEN Y. YUROWITZ, New York, NY 2 3 FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States 4 Attorney (Daniel Hanlon, Assistant United 5 States Attorney, on the brief), for 6 Richard S. Hartunian, United States 7 Attorney for the Northern District of New 8 York, Syracuse, NY. 9 10 Appeal from the United States District Court for the 11 Northern District of New York (Sharpe, J.). 12 13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 14 AND DECREED that this appeal is DISMISSED. 15 Defendant-Appellant Anthony B. Blackmore (“Appellant”) 16 appeals from a judgment of conviction entered on June 16, 17 2009, in the United States District Court for the Northern 18 District of New York (Sharpe, J.). Pursuant to a plea 19 agreement, Appellant pleaded guilty to one count of 20 possession with intent to distribute crack cocaine in 21 violation of 21 U.S.C. § 841(a)(1). In his plea agreement, 22 Appellant agreed, inter alia, to waive his right to appeal 23 any sentence of 87 months or less. Appellant was sentenced 24 to 70 months’ imprisonment. This sentence was at the low 25 end of the applicable Guidelines range. We assume the 26 parties’ familiarity with the underlying facts, the 27 procedural history, and the issues presented for review. 28 Appellant argues that his appeal waiver is void because 2 1 the district court refused to exercise its discretion under 2 Kimbrough v. United States, 552 U.S. 85 (2007), to impose a 3 non-Guidelines sentence based on the cocaine base/cocaine 4 powder disparity contained in the Guidelines. We disagree. 5 Generally, “a defendant’s knowing and voluntary waiver 6 of his right to appeal a sentence within an agreed guideline 7 range is enforceable.” United States v. Rosa, 123 F.3d 94, 8 97 (2d Cir. 1997). In some circumstances, however, a waiver 9 of appellate rights will be unenforceable, such as “when the 10 waiver was not made knowingly, voluntarily, and competently, 11 when the sentence was imposed based on constitutionally 12 impermissible factors, such as ethnic, racial or other 13 prohibited biases, when the government breached the plea 14 agreement, or when the sentencing court failed to enunciate 15 any rationale for the defendant’s sentence, thus amounting 16 to an abdication of judicial responsibility subject to 17 mandamus.” United States v. Gomez-Perez, 215 F.3d 315, 319 18 (2d Cir. 2000) (internal citations and quotation marks 19 omitted). These exceptions are circumscribed, however, and 20 we have “upheld waiver provisions even in circumstances 21 where the sentence was conceivably imposed in an illegal 22 fashion or in violation of the Guidelines, but yet was still 3 1 within the range contemplated in the plea agreement.” Id. 2 We see no reason on this record to ignore the waiver 3 contained in Appellant’s plea agreement. Appellant’s 4 sentence is below 87 months and is within the range 5 contemplated by the plea agreement. Further, there is no 6 indication that the waiver was not made knowingly or 7 voluntarily. Finally, contrary to Appellant’s contention, 8 the record unambiguously establishes that the district court 9 understood its discretion under Kimbrough to lower 10 Appellant’s sentence in light of the crack/powder disparity. 11 The court explicitly chose not to exercise that discretion 12 and went on to conclude that in light of Appellant’s conduct 13 and criminal history, a sentence at the low end of the 14 Guidelines range was reasonable. The district court did not 15 treat the Guidelines as mandatory by concluding that it was 16 inappropriate in this instance to exercise the discretion 17 afforded under Kimbrough. 18 Appellant waived his right to appeal. Consequently, 19 his appeal is barred. We have considered Appellant’s other 20 arguments on appeal and find them to be without merit. 21 For the foregoing reasons, this appeal is DISMISSED. 22 4 1 2 FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 5