19-733-cr
U.S. v. Kochonies
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, 40 Foley Square, in the City of New York,
on the 21st day of September, two thousand twenty.
PRESENT: JOSÉ A. CABRANES,
BARRINGTON D. PARKER, JR.,
MICHAEL H. PARK,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 19-733-cr
v.
RAYMOND KOCHONIES,
Defendant-Appellant.
FOR APPELLEE: ARTIE MCCONNELL (Susan Corkery, on the
brief), Assistant United States Attorneys for
Richard P. Donoghue, United States
Attorney for the Eastern District of New
York, Brooklyn, NY.
FOR DEFENDANT-APPELLANT: STEPHANIE M. CARVLIN, Law of Office of
Stephanie M. Carvlin, New York, NY.
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Appeal from a judgment of the United States District Court for the Eastern District of New
York (Sterling Johnson, District Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED.
Defendant-Appellant Raymond Kochonies (“Defendant”) appeals from a judgment of
conviction entered on March 5, 2019, following a plea of guilty to receipt of child pornography, in
violation of 18 U.S.C. § 2252(a)(2). He was sentenced principally to 144 months’ imprisonment. The
Government has moved this Court to dismiss the appeal considering Defendant’s written plea
agreement, wherein Defendant expressly waived his right to appeal any sentence equal to or less
than 235 months’ imprisonment. Defendant opposes the motion, arguing that in light of the record
as a whole—including the District Court’s alleged failure to properly inform him of and determine
that he understood the terms of his appellate waiver in accordance with Federal Rule of Criminal
Procedure 11(b)(1)(N)—his waiver was not entered knowingly and is therefore unenforceable.
Defendant does not, however, seek to vacate his plea or challenge his conviction; he challenges only
the procedural and substantive reasonableness of his sentence, as well as the enforceability of the
appellate waiver. We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.
Defendant asks us to invalidate his waiver because the record reveals that it was not entered
knowingly. 1 He argues principally that the District Court failed to ensure at his plea hearing that he
understood that he was waiving the right to appeal. See Fed. R. Crim. P. 11(b)(1)(N). Although
“[w]aivers of the right to appeal a sentence are presumptively enforceable,” United States v. Burden,
860 F.3d 45, 51 (2d Cir. 2017), it is well established that we will not enforce a waiver of appellate
rights when the “waiver was not made knowingly, voluntarily, and competently.” United States v.
Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). A district court’s failure “to comply with the
important strictures of Rule 11” may render an appellate waiver invalid. United States v. Lloyd, 901
1
In a footnote, Defendant also argues that the waiver is not enforceable because the District
Court did not articulate any rationale for the sentence imposed. See United States v. Yemitan, 70 F.3d
746, 748 (2d Cir. 1995). That argument is belied by the record. At sentencing, the District Court
expressly noted why the offense conduct was particularly troubling (e.g., Defendant’s pattern of
targeting underage girls online; Defendant’s practice of threating to publicize explicit images he
received from his minor victims unless they continued to send him additional images/videos, in
which he demanded they perform increasingly intrusive sex acts upon themselves). Additionally, the
District Court provided a Statement of Reasons, wherein it adopted the findings in the Presentence
Report in their entirety and checked off multiple factors that are considered under 18 U.S.C. §
3553(a).
2
F.3d 111, 118 (2d Cir. 2018). “In assessing the likely effect of a Rule 11 error, we are to examine the
entire record.” United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006).
Because Defendant failed to raise this claim before the District Court, we review it for plain
error. Lloyd, 901 F.3d at 118. A challenge may survive plain error review only where “(1) there is an
error; (2) the error is clear or obvious. . . ; (3) the error affected the appellant’s substantial rights. . . .;
and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”
United States v. Sanchez, 773 F.3d 389, 391 (2d Cir. 2014).
Federal Rule of Criminal Procedure 11(b)(1)(N) requires the court to “inform the defendant
of, and determine that the defendant understands, . . . the terms of any plea-agreement provision
waiving the right to appeal or to collaterally attack the sentence.” Defendant argues that the District
Court failed to satisfy that requirement because he addressed the appellate waiver provision in the
form of a compound question, lumping the appellate-waiver discussion in with the other defenses
waived in the agreement. The colloquy, however, was not as ambiguous as Defendant suggests. The
District Court stated:
Now, in paragraph four of Court Exhibit 24 No. 1 [the written, signed plea agreement],
you have agreed that if the Court imposes a sentence of 235 months or below that you
will waive your defenses to the statute of limitations, venue, and that you agree to pay
a special assessment of $100 by certified check to the Clerk of the Court before
sentencing, that you will not file an appeal or otherwise challenge by using a 2255 your
conviction or the sentence. Do you understand that?
Confidential Appendix at 71–72.
The Defendant responded, “what’s a 2255?” After conferring with his counsel, he then
responded, “okay, yes.” Id. at 72. Notably, the Defendant focused his attention on the appellate waiver
portion of the District Court’s question and conferred with counsel before answering in the
affirmative. We have taken pains to stress to district courts that “before accepting a guilty plea, the
District Court must personally inform the defendant about the listed consequences of his guilty plea
and ensure that the defendant understands them.” Lloyd, 901 F.3d at 119 (original emphasis). Perhaps
it would have been more prudent for the District Court to have broken out the appellate-waiver
inquiry into a distinct question. Defendant does not, however, draw our attention to any authority that
suggests that the failure to do so is necessarily error. See United States v. Cook, 722 F.3d 477, 482 (2d
Cir. 2013) (concluding that district court properly addressed waiver provision during plea colloquy
where there was “no realistic possibility that the defendant might have misunderstood the nature or
source of the waiver”) (alteration omitted). We need not reach that conclusion because we conclude
that there was no plain error: any purported error did not affect Defendant’s substantial rights.
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The parties disagree on the correct standard to determine whether the error affected
Defendant’s substantial rights in this context. 2 The Government urges that in the Rule 11 context, the
substantial-rights prong “require[s] that a defendant show a reasonable probability that, but for the
error, he would not have entered the plea.” Lloyd, 901 F.3d at 119 (internal quotation marks omitted).
This standard stems from the Supreme Court’s decision in United States v. Dominguez Benitez, 542 U.S.
74 (2004). Defendant argues that the Dominguez Benitez standard does not apply where, as in this appeal,
the defendant seeks only to invalidate his appellate waiver, and that statements of this Court suggesting
otherwise are dicta. See Tellado v. United States, 745 F.3d 48, 54-55 (2d Cir. 2014); Cook, 722 F.3d at 482-
83. In support of that contention, he points to decisions of several of our Sister Circuits, which
declined to apply the Dominguez Benitez standard to the substantial-rights prong of plain-error review
where a defendant challenges only the waiver and not the conviction or plea. United States v. Corso, 549
F.3d 921, 929 (3d Cir. 2008); United States v. Murdock, 398 F.3d 491, 496-97 (6th Cir. 2005); United States
v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2003); see also United States v. Villodas-Rosario, 901 F.3d
10, 16 (1st Cir. 2018) (suggesting, without deciding, that the Dominguez Benitez standard is not applicable
where defendant challenges only the enforceability of the appellate waiver). 3 Defendant urges us to
apply the alternative standard articulated in these out-of-Circuit precedents—namely, that he need
only “show a reasonable probability that the Rule 11 error precluded him from understanding that he
had a right to appeal and that he had substantially agreed to give up that right.” Corso, 549 F.3d at 929
(internal quotation marks omitted). We need not resolve the dispute as to what standard applies here
because we conclude that Defendant’s challenge fails under the standard he suggests. That is,
Defendant has not established a reasonable probability that the asserted Rule 11 error prevented him
from understanding that he had a right to appeal and was giving up that right.
Upon review of the entire record, we are satisfied that Defendant knew he was waiving his
right to appeal a sentence equal to or less than 235 months’ imprisonment. The appellate waiver was
included in the written plea agreement that was signed by both Defendant and his counsel. The
agreement further specifies that Defendant “read the entire agreement and discussed it with [his]
attorney [and that he] understands all of its terms and enter[s] into it knowingly.” Redacted Appendix
2
We addressed (but did not resolve) this very issue in United States v. Pagliuca, 767 F. App’x 93
(2d Cir. 2019) (non-precedential order), which aptly describes the relevant precedents and arguments
in greater detail.
3
There is a circuit split on this issue. Several of our Sister Circuits have applied Dominguez
Benitez to Rule 11 errors where defendants challenge the appellate waiver that bars their sentencing
appeals. See United States v. Crain, 877 F.3d 637, 639, 643-45 (5th Cir. 2017); United States v. Tanner,
721 F.3d 1231, 1235-36 (10th Cir. 2013) (per curiam).
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at 48. The District Court also confirmed during the Rule 11 colloquy in open court that Defendant
signed the agreement. Additionally, the District Court—as described above—expressly addressed the
appellate-waiver provision during the plea colloquy. After conferring with counsel as to the collateral
attack aspect of the appellate waiver, Defendant responded that he understood the waiver.
Defendant also points to other aspects of the plea colloquy as coloring both the adequacy of
the District Court’s waiver discussion and his general understanding (or lack thereof) of his appellate
waiver. Specifically, he notes that he frequently asked the District Court for clarifications throughout
the colloquy and often conferred with his lawyer before answering. He also notes that his behavior
was abnormal in that he responded to some of the Court’s inquiries in the plural possessive (e.g.,
referring to himself as “we”). Immediately prior to the plea colloquy, the District Court held a hearing
to determine whether Defendant was mentally competent to enter a plea. An impartial medical expert
testified that despite certain oddities, such as Defendant’s use of the plural possessive, he was
competent. The District Court then found that Defendant was competent. Defendant did not
challenge that determination then and does not challenge it now. Appellant’s Brief at 41. In
considering the record as a whole, we are unable to credit Defendant’s contention that his frequent
consultations with counsel and his use of the plural possessive throughout the colloquy should alter
our conclusion that he has not established a reasonable probability that the asserted Rule 11 errors on
the part of the District Judge prevented him from understanding that he had a right to appeal and that
he was waiving that right.
CONCLUSION
For the foregoing reasons, the appeal in this case is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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