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.
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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.
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1
2 FOR THE COURT:
3 Catherine O’Hagan Wolfe, Clerk
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