1

10-3018

United States v. Williams

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

New York, on the 18th 4 day of January, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 RICHARD C. WESLEY,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 UNITED STATES OF AMERICA, 

14

15 Appellee,

16

17 -v.- 10-3018

18

19 DWANDELL WILLIAMS,

20

21 Defendant-Appellant.

22

23

24 - - - - - - - - - - - - - - - - - - - -X

25

26 FOR APPELLANT: Steven Y. Yurowitz

27 New York, NY

28
2

1 FOR APPELLEE: Monica J. Richards (Stephan J.

2 Baczynski, on the brief)

3 Assistant United States

4 Attorney, for William J. Hochul,

5 Jr., United States Attorney, 

6 Western District of New York,

7 Buffalo, NY

8

9 Appeal from judgments of the United States District

10 Court for the Western District of New York (Arcara, J.).

11

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13 AND DECREED that the district court’s judgments are

14 AFFIRMED.

15

16 Dwandell Williams appeals from judgments entered in the

17 United States District Court for the Western District of New

18 York convicting him upon a guilty plea of [a] possessing

19 with the intent to distribute cocaine base in violation of

20 21 U.S.C. § 841(a)(1) and [b] violating the terms of his

21 supervised release. He was sentenced to consecutive terms

22 of imprisonment of 210 and 12 months, respectively. We

23 assume the parties’ familiarity with the underlying facts,

24 the procedural history, and the issues presented for review. 

25

26 [1] Williams argues that he was deprived of his Sixth

27 Amendment right to the effective assistance of counsel at

28 his sentencing. However, having waived his right to appeal

29 any sentence within or below the Guidelines range, he may

30 not now do an end-run around his plea agreements on the

31 ground of ineffective assistance. “Waivers of the right to

32 appeal a sentence are presumptively enforceable.” United

33 States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). So long

34 as they are knowing and voluntary, such waivers “must be

35 enforced because, if they are not, the covenant not to

36 appeal becomes meaningless and would cease to have value as

37 a bargaining chip in the hands of defendants.” United

38 States v. Granik, 386 F.3d 404, 412 (2d Cir. 2004) (internal

39 quotation marks omitted). A defendant may not “dress up” a

40 challenge to the correctness of his sentence as a Sixth

41 Amendment claim for ineffective assistance of counsel by

42 arguing the deficiency of his counsel’s performance “not at

43 the time of the plea, but at sentencing.” United States v.

44 Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (per curiam). 
3

1 Here, Williams’ sentence fell within or below the Guidelines

2 ranges specified in the plea agreements, and therefore

3 triggered the appellate waiver provisions of those

4 agreements. His arguments as to the adequacy of his

5 attorney’s performance at sentencing are consequently

6 foreclosed. See id.

7

8 [2] Williams also argues that he was not advised that the

9 Guidelines recommended an upward departure on the supervised

10 release violation because his original sentence reflected a

11 downward departure. But Williams was aware that he could

12 receive a prison term of up to five years for his supervised

13 release violation. Moreover, Williams was not prejudiced by

14 his attorney’s failure to mention the impact of the downward

15 departure at his original sentencing, since he ultimately

16 received a below-Guidelines sentence. See Strickland v.

17 Washington, 466 U.S. 668, 687 (1984). Williams therefore

18 has not shown that his attorney was ineffective in entering

19 into the plea agreement. 

20

21 We have considered Williams’ remaining arguments and

22 find them to be without merit. For the foregoing reasons,

23 the judgments of the district court are hereby AFFIRMED.

24

25

26

27 FOR THE COURT:

28 CATHERINE O’HAGAN WOLFE, CLERK

29