United States v. Brickhouse , 517 F. App'x 22 ( 2013 )

11-1698-cr
United States v. Brickhouse
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of April, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 11-1698-cr
17
18 RICKY J. BRICKHOUSE,
19 Defendant-Appellant,
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: FRANCISCO E. CELEDONIO, Law
23 Office of Francisco E.
24 Celedonio, Esq., New York, New
25 York.
26
27 FOR APPELLEE: NICHOLAS L. MCQUAID (Katherine
28 Polk Failla, on the brief),
1
1 Assistant United States
2 Attorneys, for Preet Bharara,
3 United States Attorney for the
4 Southern District of New York,
5 New York, New York.
6
7 Appeal from a judgment of the United States District
8 Court for the Southern District of New York (Karas, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that this appeal from the judgment of the
12 district court be DISMISSED.
13
14 Ricky J. Brickhouse appeals from the judgment of the
15 United States District Court for the Southern District of
16 New York (Karas, J.), sentencing him to 120 months’
17 imprisonment for conspiracy to distribute crack cocaine and
18 to 84 months’ imprisonment, to be served concurrently, for
19 distribution and possession with intent to distribute crack
20 cocaine. We assume the parties’ familiarity with the
21 underlying facts, the procedural history, and the issues
22 presented for review.
23
24 As an initial matter, the prior decision by a motions
25 panel of this Court to deny the government’s motion to
26 dismiss this appeal on the basis of Brickhouse’s appeal
27 waiver (see Mot. Order, United States v. Brickhouse, No. 11-
28 1698 (Dkt. No. 83) (Aug. 15, 2012)) is not binding on the
29 merits panel. See Rezzonico v. H&R Block, Inc., 182 F.3d
30 144, 149 (2d Cir. 1999).
31
32 Brickhouse agreed to waive his right to appeal if he
33 was sentenced to a prison term of 150 months or less, as he
34 was. The colloquy at Brickhouse’s plea hearing makes clear
35 that the appeal waiver was knowing and voluntary (see Plea
36 Hr’g Tr. 36-38 (Sept. 10, 2010)), and such a waiver is not
37 contrary to public policy. Brickhouse’s appeal waiver was
38 valid when his plea was entered, and the waiver did not lose
39 its effectiveness when the district court in a subsequent
40 proceeding made statements arguably inconsistent with that
41 waiver. No justifiable reliance could have been placed on
42 such post-plea statements. See United States v. Fisher, 232
43 F.3d 301, 304-05 (2d Cir. 2000).
44
2
1 Even though the Supreme Court has since determined, in
2 Dorsey v. United States, 132 S. Ct. 2321 (2012), that the
3 Fair Sentencing Act of 2010 may apply retroactively to
4 criminal conduct completed before the Act’s effective date,
5 the change in law does not render Brickhouse’s appellate
6 waiver unenforceable. See United States v. Harrison, 699
7 F.3d 158, 159 (2d Cir. 2012); United States v. Lee, 523 F.3d
8 104, 107 (2d Cir. 2008).
9
10 For the foregoing reasons, and finding no merit in
11 Brickhouse’s other arguments, we DISMISS the appeal.
12
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
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