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



### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT



## SUM MARY ORDE R

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 FEDERAL R ULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32 .1 .1. WHE N CI TI NG 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 PRESENT: DENNIS JACOBS, 6 7 Chief Judge, 8 REENA RAGGI, 9 Circuit Judge, 10 JED S. RAKOFF, 11 District Judge. * 12 13 - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 18 -v.- 09-4202-cr 19 20 AURELIO BERBER MAGANA, also known as 21 Yayo, 222 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. 13 - - - - - - - - - - - - - - - - - - - -X 14 FOR APPELLANT: Joyce C. London, New York, NY. 15 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 app eal s f rom 33 the ju dgm ent ofco nvi cti on ent ere d b y t he United States 34 District Court for the Southern District of New York (Cote, 35 J.) , p rin cip all y s ent enc inghi m t o 1 51 mon ths of 36 imp ris onm ent

. 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 con spi rin g t o d ist rib ute on e 43 kil ogr am or mor e o f h ero in, invi ola tio n o f 2 1 U .S. C. §§ 44 812 , 8 41( a)( 1), 84 1(b )(1 )(A ), and84 6. Th e p leaag ree men t 45 con tai nedanap pea l-w aiv er pro vis ion , u nde r w hic h B erb er 46 agr eedno t t o “ fil e adi rec t a ppe al, no r l iti gat e u nde r3 1 Tit le 28, Un ite d S tat es Cod e, Sec tio n 2 255 an d/o r S ect ion 2 224 1, anyse nte nce wi thi n o r b elo w t he Sti pul ate d G uid eli nes 3 Ran ge” of15 1 t o 1 88 mon ths ofimpri son men t. 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 26 27