United States v. Peele , 500 F. App'x 33 ( 2012 )

10-2699-cr
United States v. Peele
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of October, two thousand and
5 twelve.
6
7 PRESENT: ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 v. 10-2699-cr
19
20 LUKUAN PEELE,
21
22 Defendant-Appellant.1
23
24
25 FOR APPELLANT: DONNA R. NEWMAN, Buttermore Newman
26 Delanney & Foltz, LLP, New York, NY.
27
28 FOR APPELLEE: JOSEPH H. KARASZEWSKI, Assistant United
29 States Attorney for the Western District
30 of New York, Buffalo, NY (William J.
1
The Clerk of the Court is directed to correct the
caption as reflected above.
1 Hochul, Jr., United States Attorney for
2 the Western District of New York, on the
3 brief).
4
5
6 Appeal from the United States District Court for the
7 Western District of New York (Siragusa, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that this appeal is DISMISSED in part and the
11 judgment of the district court AFFIRMED in part.
12 Defendant-Appellant Lukuan Peele appeals from a
13 judgment of the United States District Court for the Western
14 District of New York (Siragusa, J.) sentencing him to a
15 below guidelines term of imprisonment of 288 months, a
16 $2,000 fine, and a five-year term of supervised release. We
17 assume the parties’ familiarity with the underlying facts,
18 the procedural history, and the issues presented for review.
19 On March 23, 2007, Peele negotiated a plea agreement
20 whereby he avoided a possible 30 year minimum sentencing
21 exposure for two gun related offenses with his promise that,
22 inter alia, he would not appeal a sentence for a drug
23 offense within a 292-365 month range. Peele received a 288
24 month sentence and, despite his promise to the contrary, now
25 appeals that sentence.
26 Peele asserts that his waiver is invalid because the
2
1 2009 edition of the Sentencing Guidelines were used in his
2 sentencing calculations instead of the 2006 edition. We
3 conclude that the appeal waiver is valid because he received
4 the benefit of his bargain.
5 An appeal waiver is presumptively valid and
6 enforceable. United States v. Arevalo, 628 F.3d 93, 98 (2d
7 Cir. 2010). “We have repeatedly upheld the validity of
8 [appeal] waivers if they are knowingly, voluntarily, and
9 competently provided by the defendant.” United States v.
10 Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (internal quotation
11 marks omitted). While violations of fundamental rights
12 warrant voiding appeal waivers, other meaningful errors do
13 not. Id. “We have enforced waivers where a sentence was
14 arguably imposed contrary to a statutory requirement.” Id.15 The waiver stands if Peele understood the consequences
16 of his bargain, “both in terms of what he was gaining and
17 what he was giving up” and the sentencing court did not
18 abdicate judicial responsibility. United States v.
19 Woltmann, 610 F.3d 37, 40 (2d Cir. 2010) (internal quotation
20 marks and citation omitted). “A mutual mistake concerning
21 the proper Guidelines range is an insufficient basis to void
22 a plea agreement.” Riggi, 649 F.3d at 149.
3
1 Here, Peele stipulated that (1) he understood that the
2 court must consider, but is not bound by the Sentencing
3 Guidelines, (2) the Sentencing Guidelines range set forth in
4 the agreement was correct, and (3) notwithstanding the
5 manner in which the court determines the sentence, he waived
6 his right to appeal a sentence or collaterally attack any
7 component of a sentence imposed by the court which falls
8 within the stipulated range of 292-365 months. Because the
9 parties did not stipulate to the edition of the Guidelines
10 that the parties were using, Riggi is not dispositive here.
11 But, because the sentence was within the range
12 stipulated, we hold that the waiver is valid. Moreover,
13 Peele stipulated that he understood that “the Court is not
14 bound to accept any Sentencing Guidelines calculations set
15 forth in this agreement and the defendant will not be
16 entitled to withdraw the plea of guilty based on the
17 sentence imposed by the court.” (JA 34.) “An agreement
18 that has made such express provisions with respect to the
19 possibility of a mistaken prediction as to sentencing
20 calculations is not a proper candidate for recision on the
21 ground of mutual mistake when that possibility has come to
22 fruition.” United States v. Rosen, 409 F.3d 535, 548 (2d
4
1 Cir. 2005).
2 Peele’s ineffective assistance of counsel claim merits
3 our review because the alleged ineffectiveness reflects on
4 the voluntary nature of his plea. See Parisi v. United
5 States, 529 F.3d 134, 138-39 (2d Cir. 2008). As Peele
6 admitted in both his brief and at oral argument, the one-
7 book rule would have resulted in a sentencing range that
8 included the term of imprisonment that Peele actually
9 received. We therefore reject Peele’s ineffective
10 assistance of counsel claim for want of prejudice. See
11 United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998).
12 Because the sentence that Peele would have received is below
13 the cap stipulated in the plea agreement and within the
14 range that he would have been given under the 2006
15 guidelines, Peele’s Ex Post Facto Clause claims are also
16 without merit.
17 We have considered Peele’s remaining arguments and,
18 after a thorough review of the record, find them to be
19 without merit
20 For the foregoing reasons, the appeal is DISMISSED in
21 part and judgment of the district court is AFFIRMED in part.
22
23 FOR THE COURT:
5
1 Catherine O’Hagan Wolfe, Clerk
2
3 By:
6