17‐291
U.S. v. Lutchman
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
No. 17‐291
UNITED STATES OF AMERICA,
Appellee,
v.
EMANUEL L. LUTCHMAN,
Defendant‐Appellant.
ARGUED: SEPTEMBER 12, 2018
DECIDED: DECEMBER 6, 2018
Before: NEWMAN, JACOBS, POOLER, Circuit Judges.
Emanuel L. Lutchman pleaded guilty to conspiracy to provide material
support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B(a)(1)
and was sentenced in the United States District Court for the Western District of
New York (Geraci, Ch.J.) to the statutory maximum of 240 months’
imprisonment and 50 years’ supervised release. Lutchman sought an offense‐
level reduction for conspiracy under United States Sentencing Guidelines
§ 2X1.1(b)(2), on the ground that consummation of the plot was dependent on
assistance and participation of government agents. On appeal, Lutchman
argues that his sentence was procedurally unreasonable because that reduction
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was denied and that his sentence was substantively unreasonable because it is
greater than necessary given his mental illness. While Lutchman’s plea
agreement contained an appellate waiver, we conclude that the plea agreement
was not supported by consideration and decline to enforce it to bar this appeal.
Nevertheless, Lutchman’s arguments on appeal are meritless.
Affirmed.
____________________
ALLEGRA GLASHAUSSER, Federal Defenders of New
York, Inc., New York, NY, for Defendant‐Appellant.
BRETT A. HARVEY, Asst. U.S. Atty., Rochester, NY
(James P. Kennedy, Jr., U.S. Atty., Tiffany H. Lee, Asst.
U.S. Atty., Rochester, NY, on the brief), for Appellee.
DENNIS JACOBS, Circuit Judge:
Emanuel L. Lutchman pleaded guilty to conspiracy to provide material
support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B(a)(1)
and was sentenced in the United States District Court for the Western District of
New York (Geraci, Ch.J.) to the statutory maximum of 240 months’
imprisonment and 50 years’ supervised release. Lutchman sought an offense‐
level reduction for conspiracy under United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) § 2X1.1(b)(2), on the ground that consummation of
the plot was dependent on assistance and participation of government agents.
On appeal, Lutchman argues that his sentence was procedurally unreasonable
because that reduction was denied and that his sentence was substantively
unreasonable because it is greater than necessary given his mental illness.
While Lutchman’s plea agreement contained an appellate waiver, we conclude
that the plea agreement was not supported by consideration and decline to
enforce it to bar this appeal. Nevertheless, Lutchman’s arguments on appeal
are meritless.
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For the reasons set forth herein, we affirm the judgment of the district
court.
BACKGROUND
Lutchman was arrested during the course of a plot, coordinated with a
member of the Islamic State of Iraq and the Levant (“ISIL”), to attack individuals
at Merchant’s Grill in Rochester, New York, with knives and a machete on New
Year’s Eve 2015. Late in that year, Lutchman used social media accounts to
express support for ISIL and to share ISIL propaganda in the form of images,
videos, and documents promoting terrorism. Lutchman also collected
terrorism‐related materials, including how‐to manuals for individuals seeking to
conduct terrorist attacks in the United States.
One such document contained contact information for an ISIL member in
Syria known as Abu Issa Al‐Amriki, with whom Lutchman began
communicating online in late December. On December 25 and 26, Lutchman
told Al‐Amriki that he wished to join ISIL overseas, but Al‐Amriki replied that
Lutchman must first prove his support for ISIL by attacking and killing
nonbelievers in the United States. Lutchman assured Al‐Amriki that he was
planning an “operation” with a “brother.” App’x at 14.
At about the same time, Lutchman planned a New Year’s Eve attack with
two individuals. Both of them (“Individual A” and “Individual B”) were
cooperating with the Federal Bureau of Investigation, as was a third individual
whom Individual A arranged for Lutchman to meet (“Individual C”).
Lutchman called his three supposed co‐conspirators “brothers.”
On December 27 and 28, Lutchman told Al‐Amriki about the involvement
of Individuals A, B, and C; announced his readiness to make his sacrifice; and
vowed that there was no turning back from his plan. When Lutchman
consulted Al‐Amriki about the best target for the attack, he instructed Lutchman
to find the most populated venue and kill as many people as he could.
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Lutchman told Individual C on December 28 that he wanted to attack a bar
or nightclub, using knives and a machete to kidnap and murder. As they drove
by Merchant’s Grill, Lutchman suggested that as a potential target.
On December 29, Lutchman and Individual C went shopping at Walmart
and acquired ski masks, knives, a machete, zip ties, duct tape, ammonia, and
latex gloves. Lutchman lacked funds, so Individual C paid approximately $40
for the purchase, and Lutchman promised to reimburse him.
After more exchanges with Al‐Amriki, Lutchman met Individual C on
December 30 to film a video. Consistent with Al‐Amriki’s instructions,
Lutchman pledged his allegiance to ISIL and stated his intention to “spill the
blood” of nonbelievers. App’x at 18. Immediately afterward, Lutchman was
arrested.
Lutchman entered into a plea agreement with the government on August
11, 2016. The district court imposed a sentence of 240 months of imprisonment,
the statutory maximum for Lutchman’s offense, and 50 years of supervised
release. Lutchman now seeks vacatur of his sentence and a remand for
resentencing.
DISCUSSION
A. Appeal Waiver
Lutchman’s plea agreement recited the waiver of his right to appeal any
sentence lesser than or equal to the statutory maximum of 240 months’
imprisonment, which is the sentence imposed. Lutchman argues that the
waiver should not be enforced because the plea agreement conferred no benefit
on him in exchange for his guilty plea. We agree.
While “a defendant’s right to appeal his sentence may be waived in a plea
agreement,” it is not the case “that these contractual waivers are enforceable on a
basis that is unlimited and unexamined.” United States v. Ready, 82 F.3d 551,
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555 (2d Cir. 1996), superseded on other grounds as stated in United States v.
Cook, 722 F.3d 477, 481 (2d Cir. 2013). “We construe plea agreements according
to contract law principles . . . .” United States v. Riggi, 649 F.3d 143, 147 (2d Cir.
2011) (internal quotation marks omitted). So, “a guilty plea can be challenged
for contractual invalidity, including invalidity based on a lack of consideration.”
United States v. Brunetti, 376 F.3d 93, 95 (2d Cir. 2004). Yet, “because plea
agreements are unique contracts, we temper the application of ordinary contract
principles with special due process concerns for fairness and the adequacy of
procedural safeguards.” Riggi, 649 F.3d at 147 (internal quotation marks
omitted). Accordingly, “courts construe plea agreements strictly against the
Government,” which “is usually the party that drafts the agreement” and
“ordinarily has certain awesome advantages in bargaining power.” Ready, 82
F.3d at 559.
Lutchman’s waiver of the right to appeal his sentence was unsupported by
consideration. The plea agreement provided that Lutchman would waive
indictment, plead guilty to a violation of 18 U.S.C. § 2339B(a)(1), and waive the
right to appeal any sentence lesser than or equal to the 240‐month maximum.
The government would achieve “a conviction without the expense and effort of
proving the charges at trial beyond a reasonable doubt” and save the time and
expense of an appeal. United States v. Rosa, 123 F.3d 94, 97, 101 n.7 (2d Cir.
1997).
Lutchman, however, received no benefit from his plea beyond what he
would have gotten by pleading guilty without an agreement. The government
refused to agree with Lutchman’s contention that a three‐level reduction under
Guidelines § 2X1.1(b)(2) was applicable, and specifically reserved the right to
argue to the district court that the reduction was inappropriate. True, the
government agreed not to oppose a two‐level reduction under Guidelines
§ 3E1.1(a) for Lutchman’s acceptance of responsibility and agreed to move the
district court to apply an additional one‐level reduction under Guidelines
§ 3E1.1(b) for Lutchman’s timely notification to the government of his intention
to plead guilty. But a three‐level reduction under Guidelines § 3E1.1 was
available to Lutchman even in the absence of an agreement to waive his right to
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appeal. See U.S.S.G. § 3E1.1 cmt. 6 (“The government should not withhold [a
§ 3E1.1(b) motion] based on . . . whether the defendant agrees to waive his or her
right to appeal.”).
Moreover, those reductions had no practical impact. Even after a three‐
level reduction to the respective Guidelines ranges advocated by each party, the
bottom of the resulting ranges exceeded the statutory maximum. In fact and
effect, the agreed‐upon Guidelines range equaled the 240‐month statutory
maximum‐‐a sentence the government expressly stated in the agreement that it
would recommend. Furthermore, Lutchman pleaded guilty to the only count
charged in the information, and the government has not articulated or identified
any additional counts that could have been proven at trial.
The plea agreement here provided Lutchman with no increment of
“certainty as to the extent of his liability and punishment,” Rosa, 123 F.3d at 97,
and it provided him no “chance at a reduced sentence,” Brunetti, 376 F.3d at 95
(emphasis omitted). Because the agreement offered nothing to Lutchman that
affected the likelihood he would receive a sentence below the statutory
maximum, the appellate waiver was unsupported by consideration, and we will
not enforce it to bar this appeal. See id.; see also United States v. Goodman, 165
F.3d 169, 174 (2d Cir. 1999) (refusing to enforce appeal waiver because, inter alia,
defendant “received very little benefit in exchange for her plea of guilty”).
Accordingly, in the absence of a request by either party to remand because the
plea agreement is unenforceable, we will sever the waiver from the plea
agreement and proceed to the merits of Lutchman’s arguments. Goodman, 165
F.3d at 175; see also Ready, 82 F.3d at 559 (“[C]ourts may apply general fairness
principles to invalidate particular terms of a plea agreement.”).
B. Procedural Reasonableness
Lutchman argues that he was not “about to complete . . . but for
apprehension” all of the “acts the conspirators believed necessary on their part
for the successful completion of the substantive offense,” U.S.S.G. § 2X1.1(b)(2),
because he would have been unable to complete the attack without the assistance
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of government cooperators. He therefore argues that the district court
committed procedural error when it refused to apply a 3‐level reduction under
Guidelines § 2X1.1(b)(2), and that his sentence therefore must be set aside as
unreasonable.
“A district court commits procedural error where it fails to calculate (or
improperly calculates) the Sentencing Guidelines range, treats the Sentencing
Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects
a sentence based on clearly erroneous facts, or fails adequately to explain the
chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012)
(citing Gall v. United States, 552 U.S. 38, 51 (2007)). Our review for
reasonableness is akin to a “‘deferential abuse‐of‐discretion standard.’” United
States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc) (quoting Gall, 552 U.S.
at 41). However, “[a] sentencing court’s legal application of the Guidelines is
reviewed de novo.” United States v. Desnoyers, 708 F.3d 378, 385 (2d Cir. 2013)
(internal quotation marks omitted).
Lutchman’s sentence was not procedurally unreasonable. As an initial
matter, a Guidelines § 2X1.1(b)(2) reduction would have had no impact. Even if
the three‐level reduction under § 2X1.1(b)(2) had been applied, the resulting
Guidelines range would have been 262‐327 months‐‐which exceeds the 240‐
month statutory maximum sentence that was imposed. The Supreme Court has
previously counseled that relevant statements of the sentencing judge may
counter “any ostensible showing of prejudice the defendant may make”
regarding an improper calculation of the Guidelines range. Molina‐Martinez v.
United States, 136 S. Ct. 1338, 1347 (2016). Here, the district court found that
“the only sentence” that would accomplish the goals of sentencing “is the
maximum sentence . . . of 20 years imprisonment.” App’x at 98. Thus, the
district court’s statements suggest that it would have considered Lutchman’s
240‐month sentence appropriate even with a slight reduction in the Guidelines
range. We will not disturb a sentencing determination on the basis of a
Guidelines calculation error that had no impact on the sentence imposed. Cf.
United States v. Bermingham, 855 F.2d 925, 931 (2d Cir. 1988) (“[D]isputes about
applicable guidelines need not be resolved where the sentence falls within either
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of two arguably applicable guideline ranges and the same sentence would have
been imposed under either guideline range.”).
In any event, the district court did not err in determining that a reduction
under Guidelines § 2X1.1(b)(2) is inapplicable to Lutchman. The “relevant
question” in determining whether that reduction applies is “whether the
conspiracy ripened into a substantially completed offense or came close enough
to fruition.” United States v. Downing, 297 F.3d 52, 62 (2d Cir. 2002) (internal
citations, quotation marks, alterations, and emphasis omitted). The district
court did not abuse its discretion in determining that the substantive offense‐‐
“knowingly provid[ing] material support or resources to a foreign terrorist
organization” in violation of 18 U.S.C. § 2339B(a)(1)‐‐came close enough to
fruition to render the § 2X1.1(b)(2) reduction inappropriate. In December 2015,
Lutchman shared propaganda and expressed support for ISIL, a group he knew
was a foreign terrorist organization engaged in ongoing terrorist activity. He
initiated contact with an ISIL member in Syria, Al‐Amriki, to plan a terrorist
attack in the name of ISIL, and pledged allegiance to ISIL in a martyrdom video
intended for use as ISIL propaganda. As to the attack itself, Lutchman planned
to attack and possibly abduct victims at Merchant’s Grill, and he accompanied
Individual C to purchase weapons and other materials for the attack, which
included two knives, a machete, and ammonia to destroy potential DNA in the
event that Lutchman’s blood was spilled during the attack. Therefore, the
district court did not abuse its discretion when it concluded “but for the
intervention of law enforcement in this case, the defendant would have
completed all the acts for this particular offense.” App’x at 68.
Lutchman argues that he should have received the Guidelines § 2X1.1(b)(2)
reduction because he was assisted by government informants throughout and
would have been unable to purchase weapons or successfully complete the
attack without their help. However, the fact that “[i]t may be unlikely, or even
impossible, for a conspiracy to achieve its ends once the police have detected or
infiltrated it” is “not dispositive in determining whether a three‐level reduction
is warranted under section 2X1.1(b)(2), because that section determines
punishment based on the conduct of the defendant, not on the probability that a
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conspiracy would have achieved success.” United States v. Medina, 74 F.3d 413,
418 (2d Cir. 1996) (emphasis omitted). As discussed above, Lutchman’s conduct
advanced the substantive offense‐‐a deadly attack on Merchant’s Grill in the
name of ISIL‐‐to the verge of fruition. Lutchman “had the independent ability
to control how far things would go”; it is not to be regretted that “preparations
and arrangements proceeded under the eye of the police, and, because of that,
the police were in a position to stop the progress of the crime before it reached
the threshold of completion.” Id. at 419. “The surveillance and infiltration by
the police did not affect [Lutchman’s] free will, and did not make the crime a
police exercise. The district court did not err in denying a three‐level
downward departure under section 2X1.1 of the Guidelines.” Id.
C. Substantive Reasonableness
Lutchman argued in the district court that his mental illness was a
mitigating factor. The district court recognized that it was, but also concluded
that, along with other factors, it contributed to the need for a statutory maximum
sentence. The result, Lutchman argues on appeal, is a sentence longer than
necessary to serve the goals of sentencing. He argues that his sentence is
therefore substantively unreasonable.
“Substantive reasonableness is also reviewed for abuse of discretion . . . .”
Desnoyers, 708 F.3d at 385. “In examining the substantive reasonableness of a
sentence, we review the length of the sentence imposed to determine whether it
cannot be located within the range of permissible decisions.” United States v.
Matta, 777 F.3d 116, 124 (2d Cir. 2015) (internal quotation marks omitted). We
will “set aside a district court’s substantive determination only in exceptional
cases.” Cavera, 550 F.3d at 189 (emphasis omitted).
Lutchman’s sentence is located within the range of permissible decisions,
and we therefore cannot conclude that it is substantively unreasonable. The
district court considered Lutchman’s “long history of mental health issues” and
found that those issues “probably explain[] some of [his] conduct.” App’x at 92‐
93. At the same time, the court found that Lutchman’s mental disorder, history
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of violence, and substance abuse impaired his ability to appreciate the severity of
his conduct and thereby “created a real danger in the community.” Id. at 97.
Since Lutchman’s mental health thus cut “both ways,” the court concluded that
the only way “to protect the public from further crimes” was to impose the
maximum sentence of imprisonment. Id. at 97‐98. This was not an abuse of
discretion. We are satisfied that the district court’s colloquy makes clear that it
considered the parties’ arguments and had a reasoned basis for its decision.
Cavera, 550 F.3d at 193.
Lutchman’s behavior at the end of the sentencing proceeding validated the
district court’s conclusion. Lutchman had maintained a pretense of remorse
that was dropped after the sentence was announced. Lutchman then laughed,
reaffirmed his allegiance to ISIL’s leader, and stated that more individuals like
him would “rise up.” App’x at 98‐102. We see no error in the imposition of the
statutory maximum sentence.
CONCLUSION
For the foregoing reasons, we hereby AFFIRM the judgment of the district
court.
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