12-1822-cr
United States v. Miri
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 APPELLAT E 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 O RDER 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 27th day of June, two thousand thirteen.
PRESENT: CHESTER J. STRAUB,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v- 12-1822-cr
VICTOR MIRI,
Defendant-Appellant.
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FOR APPELLEE: Jason Cowley, Assistant United
States Attorney, for Preet
Bharara, United States Attorney
for the Southern District of New
York, New York, New York.
FOR DEFENDANT-APPELLANT: Robert J. Boyle, Law Office of
Robert J. Boyle, New York, New
York.
Appeal from the United States District Court for the
Southern District of New York (McMahon, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED or, alternatively, the
judgment is AFFIRMED.
Defendant-appellant Victor Miri pled guilty, pursuant
to a plea agreement, to possession of a firearm after having
been previously convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1). The plea agreement included a waiver of his right
to appeal or otherwise challenge "any sentence within or below
. . . 87 to 108 months' imprisonment." The district court
(McMahon, J.) principally sentenced Miri to 108 months'
imprisonment. Miri appeals, challenging the substantive
reasonableness of his sentence.
As a preliminary matter, we conclude that Miri's
appellate waiver is enforceable. Miri asserts that we should
not enforce the appellate waiver in the plea agreement because
the magistrate court (Gorenstein, M.J.) wrongly informed him
during the plea allocution that "if you get a sentence of 87
months or less you are giving up your right to challenge that
sentence." Plea Tr. 9:25-10:2 (Sept. 6, 2011) (emphasis added).
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Hence, although Miri received a sentence covered by the
appellate waiver in the plea agreement, he asserts that the
magistrate court's misinformation rendered that waiver unknowing
and involuntary.
It is apparent that the magistrate judge misspoke when
he informed Miri of the terms of his appellate waiver.1 See Fed.
R. Crim. P. 11(b)(1)(N) (requiring court to inform defendant of
"the terms of any plea-agreement provision waiving the right to
appeal or to collaterally attack the sentence"). Nevertheless,
"it is well-settled that a defendant's knowing and voluntary
waiver of his right to appeal a sentence within an agreed upon
guideline range is enforceable." United States v. Lee, 523 F.3d
104, 106 (2d Cir. 2008) (omission and quotation marks omitted).
Furthermore, "a judge's remark at sentencing . . . does not
affect a waiver that is clear and fully enforceable when
entered." United States v. Roitman, 245 F.3d 124, 126 (2d Cir.
2001).
We have before us several indicia of the knowing and
voluntary nature of Miri's waiver: (1) his signature on the
written plea agreement; (2) his statements at the plea
allocution; (3) a letter to the district court from the
1
The district court, moreover, may have compounded the confusion
by initially indicating during a hearing that it would adhere to the
appellate waiver as stated on the record by the magistrate court.
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government after the error was made, which confirmed that Miri
and his lawyer "understand and agree to the appellate waiver as
described in the plea agreement" and would so clarify on the
record; and (4) Miri's statements at sentencing. Moreover, when
the error was discussed before the district court, Miri never
sought to withdraw his plea or otherwise challenged the extent
of the appellate waiver as described in the plea agreement.
Based on the foregoing, notwithstanding the magistrate
court's erroneous description of the appellate waiver, Miri
understood that the plea agreement waived his right to appeal a
sentence of 108 months' imprisonment or less. See id. (Rule 11
error did not undermine clear waiver where error did not affect
defendant's understanding of waiver). Thus, reviewing the
record as a whole, we conclude that Miri's knowing and voluntary
waiver is enforceable and that we lack jurisdiction to hear this
appeal. See United States v. Arevalo, 628 F.3d 93, 98 (2d Cir.
2010); see also United States v. Dominguez Benitez, 542 U.S. 74,
80 (2004) (courts "must look to the entire record" to assess
effect of Rule 11 error).
Even if, however, we were to reach the merits of
Miri's appeal, his arguments challenging the substantive
reasonableness of his sentence would fail. We review the length
of a sentence for reasonableness, United States v. Chu, 714 F.3d
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742, 746 (2d Cir. 2013) (per curiam), "tak[ing] into account the
totality of the circumstances, giving due deference to the
sentencing judge's exercise of discretion, and bearing in mind
the institutional advantages of district courts," United States
v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Miri was
sentenced on a single count of felony possession but, as the
district court described, the offense involved possession of "1,
2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 firearms and more than 5,000
rounds of ammunition of various makes and calibers." Sentencing
Tr. 8:5-6 (Mar. 29, 2012). Moreover, the district court was
openly -- and understandably -- skeptical of Miri's claim that
he was merely a collector of guns, particularly as guns were
found hidden underneath the mattress of his bed, in a bedroom
closet, and in a kitchen drawer; five of the guns were found
loaded; and the police also recovered fake silencers and night
vision goggles from his home.
While acknowledging certain mitigating circumstances,
the district court then found the 108-month sentence would
appropriately "punish this case, this conduct, your conduct."
Upon reviewing the record, even assuming Miri did not waive his
right to appeal, we conclude that the sentence imposed was not
"shockingly high . . . or otherwise unsupportable as a matter of
law." United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
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We have considered Miri's remaining arguments and
conclude they are without merit. For the foregoing reasons, we
DISMISS the appeal or, alternatively, we AFFIRM the judgment of
the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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