16-0403
United States v. Byrd
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
7 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
8 APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
9 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10 OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
11 ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13 At a stated term of the United States Court of Appeals for
14 the Second Circuit, held at the Thurgood Marshall United States
15 Courthouse, 40 Foley Square, in the City of New York, on the
16 12th day of January, two thousand seventeen.
17
18 PRESENT: DENNIS JACOBS,
19 SUSAN L. CARNEY,
20 Circuit Judges,
21 KATHERINE POLK FAILLA,
22 District Judge.*
23
24 - - - - - - - - - - - - - - - - - - - -X
25
26 United States of America,
27 Appellee,
28
29 -v.- 16-0403
30
31 Courtney Byrd, AKA Buck,
32 Defendant-Appellant.
33
34
35 - - - - - - - - - - - - - - - - - - - -X
36
* Judge Katherine Polk Failla of the United States
District Court for the Southern District of New York, sitting
by designation.
1
1 FOR APPELLANT: JONATHAN J. EINHORN, Law Office of
2 Jonathan J. Einhorn, New Haven, CT.
3
4 FOR APPELLEE: MICHAEL J. GUSTAFSON, Marc H.
5 Silverman (of counsel), Assistant
6 United States Attorneys, for
7 Deirdre M. Daly, United States
8 Attorney for the District of
9 Connecticut, New Haven, CT.
10
11 Appeal from a judgment of the United States District Court
12 for the District of Connecticut (Shea, J.).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
14 DECREED that the judgment of the district court be AFFIRMED.
15
16 Courtney Byrd pleaded guilty to possession with intent to
17 distribute and distribution of cocaine base in violation of 21
18 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The written plea
19 agreement calculated a Sentencing Guidelines range of 46 to 57
20 months; but that calculation turned out to be incorrect. The
21 district court (Shea, J.) calculated a Guidelines range of 92
22 to 115 months and sentenced Byrd principally to 72 months of
23 imprisonment. Byrd does not dispute that the calculation in his
24 plea agreement was incorrect or that the district judge
25 calculated the range correctly; nor does he argue that the judge
26 committed any procedural error or that 72 months is substantively
27 unreasonable. Rather, he argues that it was error for the judge
28 not to honor the range he bargained for. We disagree.
29 The plea agreement expressly warned that the anticipated
30 Guidelines range was not final, that the court would not be bound
31 by the calculation in the agreement, and that Byrd could receive
32 a longer sentence: “The defendant understands that the Court
33 . . . is not bound by this plea agreement. The defendant agrees
34 that the Sentencing Guidelines determinations will be made by
35 the Court . . . . The defendant further understands that he has
36 no right to withdraw his guilty plea if his sentence or the
37 Guideline application is other than he anticipated, including
38 if the sentence is outside any of the ranges set forth in this
39 agreement.” Def.’s App. 16.
40 The district judge also repeatedly warned Byrd at the plea
41 hearing that “nobody . . . knows today what your sentence is
2
1 going to be,” Gov.’s App. 20, and that his sentence “could be
2 increased up to the statutory maximum for a variety of reasons.”
3 Id. at 21. One example adduced by the district judge (which
4 turned out to be true) was that Byrd’s criminal history could
5 be more serious than the parties anticipated. See id. at 22.
6 Byrd acknowledged this possibility and affirmed that he
7 understood.
8 We have long held that district courts have the discretion
9 to give effect to Guidelines calculations in plea agreements
10 that result in downward departure from the correct Guidelines
11 range. See United States v. Fernandez, 877 F.2d 1138, 1145 (2d
12 Cir. 1989). Byrd’s position is that district courts should have
13 the affirmative obligation to give effect to such calculations.
14 We find no support for that position in the law. In essence,
15 Byrd makes a policy argument that the risk of surprise sentences
16 will discourage the plea bargaining on which the criminal justice
17 system relies. Even were that proposition to be valid (a point
18 we do not decide today), we are necessarily confined by the scope
19 of permissible review, and “a district court’s decision not to
20 depart from the Guidelines is generally unreviewable, unless
21 it misunderstood its authority to do so.” United States v.
22 Robinson, 799 F.3d 196, 201 (2d Cir. 2015). The same must be
23 true of a district court’s decision, such as in this case, to
24 depart from the Guidelines by a lesser degree than the defendant
25 had hoped or had reason to expect.
26 We find no procedural or substantive error in Byrd’s
27 sentence (and Byrd argues for none). It was within the district
28 judge’s discretion to impose a sentence above what was mistakenly
29 anticipated in the plea agreement.
30 Accordingly, we hereby AFFIRM the judgment of the district
31 court.
32 FOR THE COURT:
33 CATHERINE O’HAGAN WOLFE, CLERK
3