Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-28-2002
USA v. Cupak
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2628
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Recommended Citation
"USA v. Cupak" (2002). 2002 Decisions. Paper 674.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/674
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-2628
___________
MICHAEL CUPAK,
Appellant
v.
UNITED STATES OF AMERICA
_______________________________________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 00-cr-00063
(Honorable Harold A. Ackerman)
___________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 4, 2002
Before: SCIRICA, BARRY and WEIS, Circuit Judges
(Filed: October 28, 2002)
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
The issue in this sentencing appeal is whether the District Court properly sentenced
Michael Cupak pursuant to this Court’s January 12, 2001 remand order for resentencing.
Cupak contends the District Court committed plain error under Federal Rule of Criminal
Procedure 52(b) by: (1) miscalculating the loss amount and applying a three-level
enhancement under U.S.S.G. §§ 2B3.2(b)(2) and 2B3.1(b)(7)(D); (2) by not considering the
victim’s conduct and provocation as a basis for departure under U.S.S.G. § 2X1.1; (3) by
failing to consider his heart disease as grounds for downward departure under U.S.S.G. §
5H1.4; and (4) by failing to apply the Koon1 standard as grounds for downward departure
under U.S.S.G. § 5K2.0. Because we hold Cupak voluntarily waived his right to appeal any
offense level computation equal to or lower than 20 by the express terms of his plea
agreement, his claim of plain error must fail.
I.
Michael Cupak was charged in a two-count information with extortion by threat of
physical violence and conducting an illegal gambling business in violation of 18 U.S.C. §§
1951 and 1955. On February 3, 2000, Cupak pled guilty to both counts under a plea
agreement that set forth specific stipulations, including: (1) the only permissible
sentencing departures are those established in the plea agreement; (2) under U.S.S.G. §
1
Koon v. United States, 518 U.S. 81 (1996).
2
1B1.3, relevant conduct includes a telephone threat made by Cupak to “Edward Leftler,”2 a
fictitious person, regarding gambling debts owed to Cupak; and (3) a voluntary waiver of the
right to file any appeal or collateral attack that challenges the sentencing court’s imposition
of an offense level equal to or less than 20. Adopting the factual findings and guideline
range of the presentence report, the District Court imposed concurrent sentences of 49
months on Count I and 16 months on Count II. The presentence report recommended a
total offense level of 22 because the probation officer determined (erroneously) that the
relevant conduct stipulation “specifically establish[ed] the commission of additional
offense(s) [and] shall be treated as if the defendant had been convicted of additional
count(s) charging those offense(s).” U.S.S.G. § 1B1.2(c).
Cupak appealed contending the District Court committed plain error by treating the
relevant conduct stipulation3 as establishing an additional offense under U.S.S.G. §
1B1.2(c), resulting in an inappropriate two-level enhancement. The two-level enhancement
raising the offense level from 20 to 22 liberated Cupak from the waiver of his right to
appeal. The government agreed with Cupak and filed a motion for summary remand. We
2
Bradley Deaver placed bets with Cupak. In 1999, Cupak “cut off” Deaver because
Deaver was in debt to Cupak for approximately $200,000. After being cut off, Deaver
created a fictitious person (Edward Leftler) in order to continue his betting. Betting under
the name of Leftler, Deaver lost $400,000. Deaver reported these events to the FBI.
3
Paragraph 4 of the Plea Agreement states “[p]ursuant to [U.S.S.G.] §1B1.3, relevant
conduct includes a threat made over the telephone by Michael Cupak to Edward Leftler, a
fictitious person, in connection with gambling debts owed to his (Cupak’s) gambling
operation. The parties have not agreed as to the effect this relevant conduct has on Michael
Cupak’s guideline level.”
3
granted the government’s motion for summary remand and requested the District Court
resentence Cupak within the appropriate 33 to 41 month guideline range. United States v.
Cupak, No. 00-2007, N.J. 00-cr-00063 (3d Cir. Jan. 12, 2001). At the June 2001
resentencing hearing, the District Court imposed concurrent sentences of 41 months of
imprisonment on Count I (under an offense level of 20) and 16 months on Count II. This
appeal followed.
II.
A defendant who has entered into a guilty plea agreement may not ordinarily object
to its stipulations on appeal. See United States v. Khattak, 273 F.3d 557, 563 (3d Cir.
2001) (holding that knowing and voluntary waiver of right to appeal is valid); United States
v. Rodia, 194 F.3d 465, 469 (3d Cir. 1999) (stating defendant “did not preserve his right to
appeal by entering a conditional guilty plea”); United States v. Mastrangelo, 172 F.3d 288,
294 (3d Cir. 1999) (observing that defendant’s agreement to stipulation in plea agreement
on informed advice of counsel ordinarily precludes objection on appeal); United States v.
Cianci, 154 F.3d 106, 109 (3d Cir. 1998) (prohibiting defendant from reneging on
stipulation in guilty plea agreement providing for two-level upward adjustment). Because
Cupak’s sentence on remand falls within the limit stipulated to in the plea agreement, he is
barred from challenging the District Court’s application of the Sentencing Guidelines on
any grounds. Accordingly, we will not review Cupak’s allegations of error.
III.
4
Cupak is bound by the stipulation incorporated into his plea agreement. He has
waived his right to appeal a sentence based on the imposition of any offense level equal to
or less than 20. Thus, his appeal will be dismissed.
5
TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Circuit Judge