19-515
United States v. Balinda
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 TO 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 22nd day of September, two thousand twenty.
PRESENT: ROBERT D. SACK,
RICHARD C. WESLEY,
RICHARD J. SULLIVAN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 19-515-cr
EDOZIE ONYEGBULE,
Defendant,
ISMAEL BALINDA,
Defendant-Appellant.
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FOR DEFENDANT-APPELLANT: BRUCE A. BARKET (Danielle
Muscatello, Alex Klein, Donna Aldea,
on the brief), Barket Epstein Kearon
Aldea & LoTurco, LLP, Garden City,
NY.
FOR APPELLEE: MICHAEL K. KROUSE, Assistant
United States Attorney (Karl Metzner,
Assistant United States Attorney, on
the brief), for Audrey Strauss, Acting
United States Attorney for the
Southern District of New York, New
York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (P. Kevin Castel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that this appeal is DISMISSED.
Defendant-Appellant Ismael Balinda appeals from a judgment of the district
court (Castel, J.) sentencing him principally to 72 months’ imprisonment and three
years of supervised release after he pleaded guilty, pursuant to a plea agreement,
to conspiracy to import and distribute one kilogram or more of heroin and 50
grams or more of methamphetamine. Balinda contends that his sentence must be
vacated and that he must be resentenced before a different judge because the
government breached the plea agreement by “suggesting” during sentencing that
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a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises
for the purpose of manufacturing or distributing a controlled substance was
warranted. Balinda’s Br. 27. He further maintains that the appeal waiver in the
plea agreement is therefore unenforceable and that the district court clearly erred
in applying the two-level enhancement. Nevertheless, Balinda’s claims fail at the
start since the government did not breach the plea agreement. Accordingly, we
dismiss Balinda’s appeal. We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal, to which we refer only as necessary
to explain our decision.
“[W]aivers of the right to appeal a sentence are presumptively enforceable.”
United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017) (internal quotation marks
omitted). Allowing a defendant “who has secured the benefits of a plea agreement
and knowingly and voluntarily waived the right to appeal a certain sentence” to
“then appeal the merits of a sentence conforming to the agreement . . . would
render the plea bargaining process and the resulting agreement meaningless.”
United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). Consequently, we
will decline to enforce an appeal waiver only in limited circumstances. See United
States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000) (“The[] exceptions to the
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presumption of the enforceability of a waiver . . . occupy a very circumscribed area
of our jurisprudence.”). We have previously explained that there are four
circumstances in which an appeal waiver may be deemed unenforceable:
(1) where the waiver was not made knowingly, voluntarily, and
competently; (2) where the sentence was based on constitutionally
impermissible factors, such as ethnic, racial or other prohibited biases;
(3) where the government breached the agreement containing the waiver;
and (4) where the district court failed to enunciate any rationale for the
defendant’s sentence.
Burden, 860 F.3d at 51 (internal quotation marks omitted).
Balinda argues that his appeal waiver is unenforceable because the
government breached the plea agreement by (1) “remain[ing] silent when
Probation recommended [in the presentence investigation report (“PSR”)] a two-
level enhancement pursuant to section 2D1.1(b)(12) of the Guidelines”;
(2) “suggest[ing] that its evidence . . . support[ed] the enhancement” when
expressly questioned by the district court; and (3) taking “no steps” to “repudiate”
the district court’s inquiry into whether a § 2D1.1(b)(12) enhancement was
appropriate. Balinda’s Br. 28.
We interpret plea agreements “de novo and in accordance with principles of
contract law.” United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002). In
determining whether a plea agreement has been breached, we consider “the
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reasonable understanding of the parties as to the terms of the agreement.” United
States v. Colon, 220 F.3d 48, 51 (2d Cir. 2000). Given the government’s “advantages
in bargaining power, any ambiguities in the agreement must be resolved in favor
of the defendant.” Riera, 298 F.3d at 133 (internal quotation marks omitted). The
government breaches a plea agreement where its “commentary reasonably
appears to seek to influence the court in a manner incompatible with the
agreement . . . notwithstanding formal language of disclaimer.” United States v.
Amico, 416 F.3d 163, 167 n.2 (2d Cir. 2005).
Although Balinda’s plea agreement provided that the government would
not seek “any departure or adjustment pursuant to the Guidelines” that was not
set forth therein, App’x 24, it expressly permitted the government to “answer any
inquiries and to make all appropriate arguments” if the district court
contemplated any “adjustments, departures, or calculations different from those
stipulated to” in the plea agreement, id. 25. The government’s conduct at
sentencing fits comfortably within this carve out. The government merely
responded to the district court’s direct inquiries in accordance with its duty of
candor to the court. Consequently, the government did not breach the plea
agreement.
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After reviewing the PSR’s recommendation for a two-level enhancement
under § 2D1.1(b)(2), the district court first asked the government whether it
“st[ood] by [its] plea deal” and whether “probation [was] wrong about the
applicability of the enhancement.” Id. 358. The government responded to the
district court’s questioning, emphasizing that it did “stand behind the plea
agreement” and explaining why it thought that the enhancement was not
“appropriate” in Balinda’s case. Id. It was only after the district court pressed the
government further about Balinda’s control of the property in question and
inquired whether Balinda “agreed to provide security” for the property that the
government again answered the court’s questions, stating that Balinda did “agree
to provide armed guards.” Id. 362. When the district court explicitly asked the
government whether it was prepared to tell the court that it could not prove by a
preponderance of the evidence that Balinda maintained a premises for the purpose
of manufacturing a controlled substance, the government answered somewhat
equivocally that it was “not prepared to tell [the court] that.” Id. 365. Rather than
demonstrating a breach of the plea agreement, this conduct evidences that the
government abided by its commitments under the plea agreement at sentencing.
See Riera, 298 F.3d at 134 (determining that the government did not breach a nearly
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identical plea agreement where (1) it merely responded to the district court’s
specific inquiry; (2) the plea agreement’s language permitted the government to
respond to such inquiries; and (3) “the government . . . emphasized that it was not
advocating for an upward departure”).
Accordingly, because the government did not breach the plea agreement,
the appeal waiver contained therein – through which Balinda agreed not to
challenge any sentence within or below the stipulated guidelines range of 70 to 87
months’ imprisonment – prohibits Balinda from challenging his sentence.
Although Balinda maintains that the district court erred by applying a two-level
enhancement under § 2D1.1(b)(12), such alleged procedural errors are not an
exception to an otherwise valid appeal waiver. See, e.g., Gomez-Perez, 215 F.3d at
319. Balinda bargained away the right to appeal a sentence of 72 months’
imprisonment when he entered into the plea agreement, and allowing him to
challenge his sentence now would deprive the government of the benefit of that
agreement. See United States v. Morgan, 386 F.3d 376, 381 (2d Cir. 2004).
Accordingly, we dismiss Balinda’s appeal of his sentence of 72 months’
imprisonment.
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* * *
We have considered the remainder of Balinda’s arguments and find them to
be without merit. Accordingly, Balinda’s appeal is DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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