11-5468-cr
United States v. Doe
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 18th day of October, two thousand twelve.
PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 11-5468-cr
JOHN DOE,
Defendant-Appellant.
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FOR APPELLEE: Andrea L. Surratt, Brent S. Wible,
Assistant United States Attorneys,
for Preet Bharara, United States
Attorney for the Southern District
of New York, New York, New York.
FOR DEFENDANT-APPELLANT: Adam D. Perlmutter, Law Offices of
Adam D. Perlmutter, P.C., New York,
New York.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Scheindlin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the case is REMANDED to the district court for
further consideration of the sentence and, if the district court
determines it to be necessary, for resentencing.
Defendant-appellant John Doe appeals from the district
court's judgment of conviction entered on July 21, 2011. Doe
pled guilty, pursuant to a cooperation agreement, to:
(1) conspiracy to distribute cocaine, heroin, and marijuana;
(2) possession with intent to distribute oxycodone; (3) extortion
under color of official right; (4) loansharking; and (5) misuse
of a passport, in violation of 21 U.S.C. §§ 812, 841(a)(1),
841(b)(1)(C), 846, and 18 U.S.C. §§ 894, 1544, 1951(a). He was
sentenced principally to 60 months' imprisonment. We assume the
parties' familiarity with the underlying facts, the procedural
history of the case, and the issues presented for review.
On appeal, Doe argues that the district court erred in
increasing his offense level based on disclosures he made
pursuant to a cooperation agreement with the government. Because
Doe concedes that he did not object to his offense level
calculation, we review his claim for plain error. See Fed. R.
Crim. P. 52(b); Puckett v. United States, 556 U.S. 129, 134-35
(2009). An appellate court may, in its discretion, correct an
error not raised before the district court when, inter alia, the
error is plain and it affects substantial rights. Puckett, 556
U.S. at 135.
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Here, we conclude that no error was committed. Plea
agreements are interpreted according to principles of contract
law. See United States v. Woltmann, 610 F.3d 37, 39 (2d Cir.
2010). Doe's plea agreement provided:
[The U.S. Attorney's] Office will inform the
Probation Department [("Probation")] and the
[district court] of (a) this Agreement; (b)
the nature and extent of [Doe's] activities
with respect to this case and all other
activities of [Doe] which this Office deems
relevant to sentencing. . . . In so doing,
this Office may use any information it deems
relevant, including information provided by
[Doe] both prior to and subsequent to the
signing of this Agreement.
(A. 16 (emphasis added)). The agreement thus expressly stated
that, for the purposes of sentencing, the government could inform
Probation and the district court of Doe's activities through
information provided by Doe himself. Section 1B1.8 of the
Sentencing Guidelines, which permits the government to agree to
disregard admissions offered by a defendant in the course of
cooperation, is thus inapplicable here. See U.S.S.G. § 1B1.8(a)
("Where a defendant agrees to cooperate with the government by
providing information concerning unlawful activities of others,
and as part of that cooperation agreement the government agrees
that self-incriminating information provided pursuant to the
agreement will not be used against the defendant, then such
information shall not be used in determining the applicable
guideline range, except to the extent provided in the
agreement."). Instead of agreeing to disregard such admissions,
here the government specifically retained the right to bring
Doe's admissions to the attention of the court.
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As the government acknowledges on appeal, however, the
district court made a mathematical error in its guidelines
calculation. Adopting the quantity determination in the
presentence report, to which neither side objected below, the
district court determined that the drugs involved in Doe's
offenses were equivalent to 11,074 kilograms of marijuana when
the equivalent quantity was actually 9,074 kilograms of
marijuana. Hence, Doe's sentencing range should have been 108 to
135 months' imprisonment rather than 135 to 168 months. As we
cannot be sure whether the district court would have imposed the
same sentence of 60 months' imprisonment had it started from the
correct guidelines range, we remand to the district court for
further consideration of Doe's sentence and to determine whether,
in light of the corrected range, resentencing is necessary. See
United States v. Ahders, 622 F.3d 115, 123 (2d Cir. 2010) (per
curiam).
We have considered Doe's remaining arguments and find
them to be without merit. Accordingly, we hereby REMAND to the
district court for further consideration of the sentence in light
of the mathematical error referenced above, and, if the district
court determines it to be necessary, for resentencing.
In the interest of judicial economy, this panel will
retain jurisdiction over any subsequent appeal; either party may
notify the Clerk of a renewed appeal within fourteen days of the
district court's decision. See United States v. Jacobson, 15
F.3d 19, 22 (2d Cir. 1994).
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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