1 10-3018 United States v. Williams



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND**  **THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A** 
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 18 th** **day of January, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **RICHARD C. WESLEY,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judges**

. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **UNITED STATES OF AMERICA,** 13 14 Appellee **,** 15 16 **-v.- 10-3018** 17 18 **DWANDELL WILLIAMS,** 19 20 Defendant-Appellant

**.** 21 22 23 - - - - - - - - - - - - - - - - - - - -X 24 25 **FOR APPELLANT:** Steven Y. Yurowitz 26 New York, NY 27 282 **FOR APPELLEE:** Monica J. Richards (Stephan J. 1 Baczynski, on the brief ) 2 Assistant United States 3 Attorney, forWilliam J. Hochul, 4 Jr., United States Attorney, 5 Western District of New York, 6 Buffalo, NY 7 8 Appeal from judgments of the United States District 9 Court for the Western District of New York (Arcara, J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the district court’s judgments are 13 **AFFIRMED**

. 14 15 Dwandell Williams appeals from judgments entered in the 16 United States District Court for the Western District of New 17 York convicting him upon a guilty plea of [a] possessing 18 with the intent to distribute cocaine base in violation of 19 21 U.S.C. § 841(a)(1) and [b] violating the terms of his 20 supervised release. He was sentenced to consecutive terms 21 of imprisonment of 210 and 12 months, respectively

. We 22 assume the parties’ familiarity with the underlying facts, 23 the procedural history, and the issues presented for review. 24 25 **[1]** Williams argues that he was deprived of his Sixth 26 Amendment right to the effective assistance of counsel at 27 his sentencing. However, having waived his right to appeal 28 any sentence within or below the Guidelines range, he may 29 not now do an end-run around his plea agreements on the 30 ground of ineffective assistance. “Waivers of the right to 31 appeal a sentence are presumptively enforceable.” United 32 States v. Arevalo , 628 F.3d 93, 98 (2d Cir. 2010). So long 33 as they are knowing and voluntary, such waivers “must be 34 enforced because, if they are not, the covenant not to 35 appeal becomes meaningless and would cease to have value as 36 a bargaining chip in the hands of defendants.” United 37 States v. Granik , 386 F.3d 404, 412 (2d Cir. 2004) (internal 38 quotation marks omitted). A defendant may not “dress up” a 39 challenge to the correctness of his sentence as a Sixth 40 Amendment claim for ineffective assistance of counsel by 41 arguing the deficiency of his counsel’s performance “not at 42 the time of the plea, but at sentencing.” United States v. 43 Djelevic , 161 F.3d 104, 107 (2d Cir. 1998) (per curiam). 443 Here, Williams’ sentence fell within or below the Guidelines 1 ranges specified in the plea agreements, and therefore 2 triggered the appellate waiver provisions of those 3 agreements. His arguments as to the adequacy of his 4 attorney’s performance at sentencing are consequently 5 foreclosed. See id. 6 7 **[2]** Williams also argues that he was not advised that the 8 Guidelines recommended an upward departure on the supervised 9 release violation because his original sentence reflected a 10 downward departure. But Williams was aware that he could 11 receive a prison term of up to five years for his supervised 12 release violation. Moreover, Williams was not prejudiced by 13 his attorney’s failure to mention the impact of the downward 14 departure at his original sentencing, since he ultimately 15 received a below-Guidelines sentence. See Strickland v. 16 Washington , 466 U.S. 668, 687 (1984). Williams therefore 17 has not shown that his attorney was ineffective in entering 18 into the plea agreement. 19 20 We have considered Williams’ remaining arguments and 21 find them to be without merit. For the foregoing reasons, 22 the judgments of the district court are hereby **AFFIRMED**

. 23 24 25 26 FOR THE COURT: 27 CATHERINE O’HAGAN WOLFE, CLERK 28 29