The Honorable Jed S. Rakoff, of the United States *

District Court for the Southern District of New York,

sitting by designation.

1

09-4202-cr

United States v. Magana

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 3 day of September, two thousand ten. rd

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 REENA RAGGI,

9 Circuit Judge,

10 JED S. RAKOFF,

11 District Judge.*

12

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14 UNITED STATES OF AMERICA, 

15

16 Appellee,

17

18 -v.- 09-4202-cr

19

20 AURELIO BERBER MAGANA, also known as

21 Yayo,

22
2

1 Defendant-Appellant,

2

3 JOSE REYES SANCHEZ, JUAN ANTONIO

4 RODRIGUEZ-MESA, also known as

5 Juanito, also known as Jean Antonio

6 Rodriguez, LUIS SANTIAGO, JAN LUIS

7 REYES-MARTE, also known as “39,”

8 KELVIN HERNANDEZ, also known as

9 Chamo, also known as Chamuco, also

10 known as Miguel Nater, 

11

12 Defendants.

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14

15 FOR APPELLANT: Joyce C. London, New York, NY.

16

17 FOR APPELLEE: Jesse M. Furman, Assistant United States

18 Attorney (Adam S. Hickey, Assistant

19 United States Attorney, on the brief),

20 for Preet Bharara, United States Attorney

21 for the Southern District of New York,

22 United States Attorney’s Office for the

23 Southern District of New York, New York,

24 NY. 

25

26 Appeal from a judgment of the United States District

27 Court for the Southern District of New York (Cote, J.).

28

29 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

30 AND DECREED that the appeal be DISMISSED. 

31

32 Defendant-appellant Aurelio Berber Magana appeals from

33 the judgment of conviction entered by the United States

34 District Court for the Southern District of New York (Cote,

35 J.), principally sentencing him to 151 months of

36 imprisonment. We assume the parties’ familiarity with the

37 underlying facts, the procedural history, and the issues

38 presented for review.

39

40 On May 8, 2009, pursuant to a written plea agreement,

41 Berber pleaded guilty to Count One of the operative

42 indictment, charging him with conspiring to distribute one

43 kilogram or more of heroin, in violation of 21 U.S.C. §§

44 812, 841(a)(1), 841(b)(1)(A), and 846. The plea agreement

45 contained an appeal-waiver provision, under which Berber

46 agreed not to “file a direct appeal, nor litigate under
3

1 Title 28, United States Code, Section 2255 and/or Section

2 2241, any sentence within or below the Stipulated Guidelines

3 Range” of 151 to 188 months of imprisonment. 

4

5 On appeal, Berber contends that the appeal-waiver

6 provision is unenforceable because of the government’s

7 conduct. See United States v. Gomez-Perez, 215 F.3d 315,

8 319 (2d Cir. 2000) (explaining that “a defendant may have a

9 valid claim that the waiver of appellate rights is

10 unenforceable . . . when the government breached the plea

11 agreement”). But the government’s conduct--in its written

12 sentencing submission and at the sentencing proceeding--was

13 fully consistent with the government’s contractual

14 obligations and wholly appropriate in response to the

15 arguments raised by Berber. Accordingly, the appeal-waiver

16 provision is enforceable and Berber’s appeal is dismissed. 

17

18 We have considered all of Berber’s contentions on this

19 appeal and have found them to be without merit. 

20 Accordingly, the appeal is hereby DISMISSED. 

21

22

23 FOR THE COURT:

24 CATHERINE O’HAGAN WOLFE, CLERK

25

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