United States v. Lee ( 2008 )

06-4933-cr
U.S.A. v. Lee
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2007
(Submitted: April 11, 2008 Decided: April 17, 2008)
Docket No. 06-4933-cr
UNITED STATES OF AMERICA,
Appellee,
v.
CATHY LEE,
Defendant-Appellant.
Before: CABRANES and WESLEY, Circuit Judges, and Castel, District Judge.*
Appeal from a judgment of conviction entered by the U.S. District Court for the Eastern
District of New York (Arthur D. Spatt, Judge). The United States moved to dismiss the appeal on the
ground that, pursuant to a plea agreement, appellant waived her right to file an appeal. We conclude
that Lee’s waiver of her right to appeal her sentence is valid and therefore grant the government’s
motion to dismiss.
Dismissed.
Benton J. Cambell, U.S. Attorney for the Eastern District of
New York (Peter A. Norling, Susan Corkery, Assistant
U.S. Attorneys, on the brief), Brooklyn, NY, for Appellee
United States of America.
*
The Honorable P. Kevin Castel, of the United States District Court for the Southern District of New
York, sitting by designation.
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Laurie S. Hershey, Manhasset, NY, for Defendant-Appellant Cathy
Lee.
JOSÉ A. CABRANES, Circuit Judge:
Defendant-Appellant Cathy Lee appeals from a judgment of conviction entered by the U.S.
District Court for the Eastern District of New York (Arthur D. Spatt, Judge). Lee pleaded guilty,
pursuant to a plea agreement, to one count of possession with intent to distribute fifty grams or more
of cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). On appeal, she contends
that her sentence of 120 months’ incarceration—the mandatory minimum sentence associated with her
offense of conviction—violates 18 U.S.C. § 3553(a), the requirement that a sentence be reasonable, her
right to equal protection under the law, and the Eighth Amendment’s ban on cruel and unusual
punishment, in light of the disparity between the quantities of powder cocaine and crack cocaine
necessary to trigger this mandatory minimum sentence. The government, noting that Lee signed a plea
agreement in which she agreed “not [to] file an appeal or otherwise challenge the conviction or
sentence in the event that the Court imposes a term of imprisonment of 188 months or below,” moves
to dismiss Lee’s appeal. For the reasons set forth below, we agree that Lee has waived her appeal rights
and therefore dismiss her appeal.
DISCUSSION
The sole issue raised by Lee on appeal concerns the disparity—a 100:1 ratio—between the
quantity of powder cocaine and crack cocaine necessary to trigger a statutory ten-year mandatory
minimum sentence. She does not otherwise contest the validity of her plea agreement, conviction or
sentence. The government has moved to dismiss Lee’s appeal in light of her agreement to not appeal a
sentence of imprisonment less than or equal to 188 months and her receipt of a sentence of
imprisonment of only 120 months.
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As we have previously recognized, “[i]t 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. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998). We have nevertheless recognized an exception
to that general proposition when the court’s “arguably unconstitutional” consideration of a factor, such
as status as a naturalized citizen, is alleged to have influenced sentencing. United States v. Jacobson, 15
F.3d 19, 23 (2d Cir. 1994); see also United States v. Johnson, 347 F.3d 412, 419 (2d Cir. 2003) (indigency);
United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). Lee contends that her appeal falls within
that exception because race-based discrimination affected her sentence. She does not allege, however,
that the District Court considered her race—or any other suspect factor—when imposing sentence; nor
is there any evidence whatsoever in the record that would support such an allegation. Instead, Lee
argues that the statutory minimum sentence is itself discriminatory because the disparity between the
quantities of powder cocaine and crack cocaine that trigger it has an adverse racial impact. This
allegation, which has no bearing on whether the District Court considered an impermissible factor
when imposing sentence, does not fall within the waiver exception outlined above for appeals claiming
that bias influenced a sentencing court’s decision; nor does it present any other compelling reason for
us to deem Lee’s appeal waiver unenforceable. Accordingly, we find Lee’s waiver valid and
enforceable.
In any event, we have already rejected Lee’s equal-protection challenge to the powder cocaine–
crack cocaine disparity embodied in an Act of Congress. See United States v. Stevens, 19 F.3d 93, 97 (2d
Cir. 1994) (“Because we believe that treatment of one gram of crack cocaine as the equivalent of 100
grams of powder cocaine is rationally related to the legitimate governmental purpose of protecting the
public against the greater dangers of crack cocaine, we reject [the] equal protection challenge to this
sentencing scheme.”). Lee argues that the legal landscape has changed since we decided Stevens, relying
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on the Supreme Court’s recent decision that judges “may consider the disparity between the Guidelines’
treatment of crack and powder cocaine offenses” when imposing sentence. Kimbrough v. United States,
128 S. Ct. 558, 564 (2007) (emphasis added). It is not apparent to us that the principles set forth in
Kimbrough have any application to mandatory minimum sentences imposed by statute.
Even if they did, however, Lee would not be able to benefit from this new precedent. As we
held in United States v. Morgan, a defendant’s “inability to foresee that subsequently decided cases would
create new appeal issues 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.” 406 F.3d 135, 137 (2d Cir. 2005) (footnotes omitted). In
United States v. Roque, we applied this principle to a claim arising from the Supreme Court’s then-recent
decision, in United States v. Booker, 543 U.S. 220 (2005), that the U.S. Sentencing Guidelines were
advisory rather than mandatory. 421 F.3d 118 (2d Cir. 2005). We held that “an otherwise valid plea
agreement and waiver of right to appeal sentence, entered into before [Booker], is enforceable even if the
parties, at the time they entered into the agreement, erroneously believed that the United States
Sentencing Guidelines were mandatory rather than advisory.” Id. at 124. That reasoning would apply
equally to any impact Kimbrough may have on Lee’s sentence; therefore, neither Kimbrough nor any other
legal “developments” constitute grounds for finding Lee’s appeal waiver unenforceable.
CONCLUSION
For the reasons stated above, we conclude that the appeal waiver set forth in Lee’s plea
agreement is valid and enforceable. The appeal is therefore DISMISSED.
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