United States v. Bobbitt

14-2272 United States v. Bobbitt 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 30th day of April, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 ROSEMARY S. POOLER, 8 PETER W. HALL, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - X 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 -v.- 14-2272 16 17 BRANDON BOBBITT, 18 Appellant. 19 - - - - - - - - - - - - - - - X 20 21 FOR APPELLANT: Ryan Thomas Truskoski, 22 Harwinton, Connecticut. 23 24 FOR APPELLEE: Stephan J. Baczynski, for 25 William J. Hochul, Jr., United 26 States Attorney for the Western 27 District of New York, Buffalo, 28 New York. 29 1 Appeal from a judgment of the United States District 2 Court for the Western District of New York (Arcara, J.). 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the appeal be DISMISSED. 6 7 Brandon Bobbitt appeals from the judgment of the United 8 States District Court for the Western District of New York 9 (Arcara, J.), sentencing him after his guilty plea 10 principally to 210 months’ imprisonment. On appeal, Bobbitt 11 challenges the procedural reasonableness of his sentence. 12 We assume the parties’ familiarity with the underlying 13 facts, the procedural history, and the issues presented for 14 review. 15 16 Bobbitt waived his right to appeal a sentence that 17 falls within the range of sentences specified in the plea 18 agreement. “Waivers of the right to appeal a sentence are 19 presumptively enforceable.” United States v. Riggi, 649 20 F.3d 143, 147 (2d Cir. 2011) (internal quotation marks 21 omitted). Bobbitt does not contend that his appeal waiver 22 was not made knowingly, that his sentence was based on 23 constitutionally impermissible factors, or that the 24 government has breached its agreement. See United States v. 25 Buissereth, 638 F.3d 114, 117-18 (2d Cir. 2011) (setting out 26 limits on enforceability of appeal waiver but finding appeal 27 waiver “preclude[s] this Court from correcting the 28 [procedural] errors alleged to have occurred below”). 29 30 Bobbitt contends that the district court focused on the 31 appeal waiver to the exclusion of appropriate sentencing 32 considerations under 18 U.S.C. § 3553(a). Cf. United States 33 v. Woltman, 610 F.3d 37, 42 (2d Cir. 2010) (finding district 34 court “refused to consider the 5K1.1 letter and the 35 § 3553(a) factors on the ground that the appeal waiver and 36 the sentencing range in the Agreement obviated anything 37 else.”). The record does not support the contention that 38 the court failed to consider the relevant circumstances. 39 Nor did the district court defeat the parties’ reasonable 40 expectations: Bobbitt was sentenced to a term of 41 incarceration at the high-end of the range contemplated in 42 his plea agreement. Cf. United States v. Borrego, 388 F.3d 43 66, 69 (2d Cir. 2004) (“[D]isputes about applicable 44 guidelines need not be resolved where the sentence falls 45 within either of two arguably applicable guideline ranges 46 and the same sentence would have been imposed under either 47 guideline range.” (internal quotation marks omitted)). 2 1 For the foregoing reasons, and finding no merit in 2 Bobbitt’s other arguments, we hereby DISMISS the appeal. 3 4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 3