12-2980-cr
United States v. Cruz-Castillo
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 1st day of November, two thousand thirteen.
Present: ROBERT A. KATZMANN,
Chief Judge,
AMALYA L. KEARSE,
RICHARD C. WESLEY,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA
Appellee,
-v- No. 12-2980-cr
NOLAN CRUZ-CASTILLO, AKA Nolan Curz-Castillo,
Defendant-Appellant.
________________________________________________
For Appellee: Harris M. Fischman and Michael A. Levy, Assistant United
States Attorneys, for Preet Bharara, United States Attorney for
the Southern District of New York, New York, NY
For Defendant-Appellant: Marsha R. Taubenhaus, Law Offices of Marsha R.
Taubenhaus, New York, NY
Appeal from the United States District Court for the Southern District of New York
(Crotty, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
and DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-Appellant Nolan Cruz-Castillo appeals from a July 11, 2012 judgment of
conviction entered in the United States District Court for the Southern District of New York
(Crotty, J.) following a plea of guilty. We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
First, Cruz-Castillo appeals from the district court’s denial of his motion to withdraw his
guilty plea. He claims that his motion should have been granted, asserting that he did not
understand the plea agreement, which he alleges was not properly translated into Spanish, and
because he could not easily communicate with his attorney, who he alleges was not fluent in
Spanish. But Cruz-Castillo’s allegations in the motion to withdraw and on appeal “merely
contradict the record.” United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) (quoting United
States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992)). At his plea allocution, Cruz-Castillo
confirmed while under oath that he had reviewed his plea agreement with his attorney and that
he was satisfied with his attorney’s advice and representation. “A defendant’s bald statements
that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw
[a] guilty plea.” Id. We conclude that the district court did not abuse its discretion in denying
Cruz-Castillo’s motion to withdraw his plea.
Next, Cruz-Castillo appeals from the district court’s imposition of a sentence of 99
months of imprisonment, arguing that the sentence was unreasonable. However, in his plea
agreement Cruz-Castillo agreed not to appeal from “any sentence within or below the Stipulated
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Guidelines Range of 87 to 108 months’ imprisonment.” J.A. at 23. This waiver covers the
sentence that was imposed by the district court.
Cruz-Castillo contends that he is not bound by the appeal waiver because the government
breached the plea agreement when it advocated against the application of an acceptance-of-
responsibility adjustment. We disagree. The agreement states that “[n]othing in this Agreement
limits the right of the Government to seek denial of the adjustment for acceptance of
responsibility . . . if the defendant fails clearly to demonstrate acceptance of responsibility, to the
satisfaction of the Government, through his allocution and subsequent conduct prior to the
imposition of sentence.” J.A. at 23. The government reasonably determined that Cruz-Castillo
had failed to demonstrate acceptance of responsibility to the government’s satisfaction because
Cruz-Castillo had filed a motion to withdraw his guilty plea in which, at the least, he
“maintain[ed] his innocence to some degree.” J.A. at 44. The government was therefore entitled
to advocate against a finding that Cruz-Castillo had accepted responsibility, and in doing so it
did not breach the plea agreement. Consequently, the appeal waiver within that agreement bars
Cruz-Castillo’s sentencing appeal. We will enforce that waiver here and decline to consider his
sentencing challenges. See United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998) (per
curiam) (“It is by now well-settled that a defendant’s knowing and voluntary waiver of his right
to appeal a sentence within an agreed upon guideline range is enforceable.”).
We have considered Cruz-Castillo’s remaining arguments and find them to be without
merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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