20-3820
United States v. Crews
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 15th day of March, two thousand twenty-two.
PRESENT:
RICHARD J. SULLIVAN,
EUNICE C. LEE,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 20-3820
JOHN CREWS, JR.,
Defendant-Appellant. ∗
_____________________________________
∗
The Clerk of Court is respectfully directed to amend the caption as reflected above.
For Appellant: INES MCGILLION, Ines McGillion Law
Offices, PLLC, Putney, VT.
For Appellee: BENJAMIN D. KLEIN (Karl Metzner, on
the brief), Assistant United States
Attorneys, for Damian Williams,
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 (Vincent L. Briccetti, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that this appeal is DISMISSED.
John Crews, Jr., appeals from a judgment of conviction following his
resentencing after a guilty plea to one count of conspiracy to commit Hobbs Act
robbery in violation of 18 U.S.C. § 1951. On appeal, Crews argues that the district
court wrongly concluded that the robbery conspiracy constituted a crime of
violence under Section 4B1.1 of the U.S. Sentencing Guidelines (the “Career
Offender Guideline”); he also contends that the district court miscalculated his
Criminal History Category. The government moves to dismiss the appeal based
on the appellate waiver in the parties’ plea agreement.
The background and procedural history of this case, which are relevant to
this appeal, are as follows. On September 21, 2015, Crews pleaded guilty to one
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count of conspiracy to commit Hobbs Act robbery, and one count of brandishing
a firearm during and in relation to a crime of violence in violation of 18 U.S.C.
§ 924(c). The district court sentenced Crews to 204 months’ imprisonment – well
below the sentencing range of 262 to 327 months’ imprisonment that Crews had
stipulated to in his plea agreement (the “Stipulated Guidelines Range”).
Notwithstanding the appellate waiver, Crews appealed. This Court then held the
appeal in abeyance pending the Supreme Court’s resolution of several cases
concerning the constitutionality of section 924(c) and whether Hobbs Act
conspiracy could serve as a predicate crime of violence for a section 924(c) offense.
Following the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319
(2019), this Circuit held that section 924(c) convictions predicated on conspiracy to
commit Hobbs Act robbery were constitutionally infirm, see United States v. Barrett,
937 F.3d 126, 127 (2d Cir. 2019), prompting the government and Crews to jointly
move this Court to vacate Crews’s section 924(c) conviction and remand for
resentencing on his section 1951 conviction. On remand, the district court
sentenced Crews to 168 months’ imprisonment, well below the sentencing range
of 262 to 327 months’ imprisonment stipulated to in the plea agreement. Crews
again appealed.
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The government now argues that the appeal waiver contained in the plea
agreement is still valid and enforceable, notwithstanding the dismissal of the
section 924(c) count. According to that waiver, Crews agreed that he would “not
file a direct appeal [from,] nor bring a collateral challenge [to,] . . . any sentence
within or below the Stipulated Guidelines Range.” App’x at 87. We have
consistently held that “[w]aivers of the right to appeal a sentence are
presumptively enforceable.” United States v. Borden, 16 F.4th 351, 354 (2d Cir. 2021)
(quoting United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010)). Nevertheless, this
presumption can be defeated
(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.”
United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017) (quoting United States v.
Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000)).
Crews argues in response that the government effectively waived
enforcement of the appellate waiver provision by declining to invoke it when
Crews filed his first appeal challenging his section 924(c) conviction; he therefore
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maintains that the government is prohibited from selectively enforcing the
appellate waiver in the instant appeal. Although not illogical, this argument has
already been considered and rejected by this Court. In Borden, the defendant – like
Crews – pleaded guilty to conspiracy to commit Hobbs Act robbery and the use
and carrying of a firearm in furtherance of that offense, in violation of
section 924(c). 16 F.4th at 353. After the district court sentenced the defendant, the
Supreme Court decided Davis, and the defendant then sought vacatur of the
section 924(c) conviction pursuant to 28 U.S.C. § 2255, despite the fact that his plea
agreement contained a waiver prohibiting appeals or collateral challenges. Id.
There, as here, the government consented to vacatur of the defendant’s
section 924(c) conviction, and following resentencing on the Hobbs Act count, the
defendant again appealed. Id. at 353–54. The Court dismissed the appeal, holding
“that under the circumstances of this case the appellate waiver provision remains
enforceable.” Id. at 353.
As in Borden, the government’s decision to jointly move with Crews to
vacate his section 924(c) conviction was in Crews’s personal interest. Id. at 355.
Likewise, it furthered the interests of judicial economy and justice, because any
attempt to enforce the appellate waiver at that time “would likely have fueled
more litigation about the appeal waiver,” id. at 355 n.1, even though the parties
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agreed that Crews’s section 924(c) “conviction was constitutionally infirm” after
Barrett, id. at 355. In addition, the parties’ joint motion to vacate Crews’s
section 924(c) conviction did not raise an issue that is closely linked to the issues
that he raises in this appeal. See id. As we noted in Borden, the question of whether
Hobbs Act robbery qualifies as a crime of violence under the Career Offender
Guideline is not closely linked to the vacatur of a section 924(c) conviction. Id.
Crews’s second argument on appeal – that the district court improperly
considered his prior New York state court youthful-offender adjudication in
calculating his Criminal History Category – is, if anything, even less closely related
to the vacatur of the section 924(c) count, cf. United States v. Ojeda, 946 F.3d 622,
629–30 (2d Cir. 2020), since analyzing the former requires interpreting the meaning
of “conviction” under Sections 4A1.1 and 4A1.2 of the Sentencing Guidelines,
while analyzing the latter involves determining whether the range of offense
conduct captured by the Hobbs Act robbery statute is too broad to qualify as a
predicate crime of violence under section 924(c). Finally, the fact that the
government “seeks to dismiss all of [Crews’s] challenges on appeal” instead of
“pars[ing] related challenges” further counsels in favor of partially enforcing the
appellate waiver. Borden, 16 F.4th at 356. 1
1 At oral argument, the parties disputed whether, in a case where the government seeks partial
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Crews nevertheless argues that the Supreme Court’s decision in Davis was
unforeseeable, making his appellate waiver unknowing and involuntary. He also
asserts that the government’s reliance on different Guidelines at resentencing was
akin to a material breach of the plea agreement, which would provide a separate
basis for disregarding the appeal waiver. See Burden, 860 F.3d at 51 (“[A]n appeal
waiver may be deemed unenforceable . . . where the ‘waiver was not made
knowingly, voluntarily, and competently;’ . . . [or] where the government breached
the agreement containing the waiver.” (quoting Gomez-Perez, 215 F.3d at 319)).
But once again, our precedent forecloses Crews’s argument that his waiver
was not knowing or voluntary. “[A] defendant’s inability to foresee [a change in
the law] does not supply a basis for failing to enforce an appeal waiver. On the
contrary, the possibility of a favorable change in the law after a plea is simply one
of the risks that accompanies pleas and plea agreements.” Sanford v. United States,
841 F.3d 578, 580 (2d Cir. 2016) (internal quotation marks omitted) (quoting United
States v. Lee, 523 F.3d 104, 107 (2d Cir. 2008)).
As for the asserted breach of the plea agreement, it can hardly be argued
that the government exceeded “the reasonable understanding and expectations of
enforcement of an appeal waiver, it or the defendant bears the burden of showing that the Borden
factors do or do not apply. We need not reach that question here, as the result would be the same
regardless of who bears the burden.
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the defendant,” Paradiso v. United States, 689 F.2d 28, 31 (2d Cir. 1982), merely by
advocating for the application of a Guidelines enhancement that was previously
inapplicable only because of Crews’s plea to the now-vacated section 924(c) count.
See U.S. Sent’g Guidelines Manual § 2k2.4, Application Note 4 (U.S. Sent’g
Comm’n 2021) (“If a sentence under this guideline is imposed in conjunction with
a sentence for an underlying offense, do not apply any specific offense
characteristic for the possession, brandishing, use, or discharge of a[] . . . firearm
when determining the sentence for the underlying offense.”).
Furthermore, that Crews pleaded guilty to a section 924(c) firearm offense
in the plea agreement demonstrates that he had a “reasonable understanding and
expectation[]” that “the sentence for which he had bargained” included his use of
a firearm. United States v. Wilson, 920 F.3d 155, 158 (2d Cir. 2019) (quoting Paradiso,
689 F.2d at 31). Thus, Probation’s inclusion of the firearm enhancement at
resentencing simply captured the firearm use that the plea agreement had clearly
contemplated. See, e.g., App’x at 81, 83. And in turn, the government’s support of
Probation’s recalculation of Crews’s Guidelines Range accords with the plea
agreement’s provision allowing the parties to “make all appropriate arguments”
when Probation calculates a Guidelines range different than the stipulated range.
App’x at 86. That is particularly true given that the government itself sought a
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sentence of 204 months’ imprisonment at resentencing, well below the Stipulated
Guidelines Range.
For all these reasons, we conclude that the government’s support of the
specific firearm enhancements did not constitute a breach of the agreement. 2
We have considered the other arguments Crews raises challenging
enforcement of the appellate waiver and find them to be without merit. We
conclude that Crews’s appellate waiver should be enforced in this appeal, and
therefore do not consider the other arguments that he now raises.
Accordingly, we DISMISS this appeal.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
2 “In general, the remedy for a breached plea agreement is either to permit the plea to be
withdrawn or to order specific performance of the agreement.” Wilson, 920 F.3d at 168 (quoting
United States v. Vaval, 404 F.3d 144, 154 (2d Cir. 2005)). Crews has not indicated that he wants to
withdraw his plea, nor does he seek to be resentenced because of the government’s alleged
breach. Instead, Crews would have us find the government breached its commitment, but merely
excise a single provision, the appellate waiver, from the plea agreement as a result of this breach.
We need not reach whether we can fashion such a remedy since we have determined that the
government did not breach the plea agreement in the first place.
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