1 16-418-cr
United States v. Ritter

UNITED STATES COURT OF APPEALS
FOR THE SECO ND 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 DA TABASE (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 Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 23 rd day of June, two th ousand seventeen.

PRESENT: B ARRINGTON D. P ARKER

, R ICHARD C. W ESLEY

, C HRISTOPHER F. D RONEY

, Circuit Judges

.

---------------------------- ---------------------------- -------------- U NITED S TATES OF A MERICA

, Appellee

,

v. No. 16-418-cr
J EFFERY R ITTER

, Defendant-Appellant

.

FOR DEFENDANT-APPELLANT: B RENDAN W HITE

, White & White, New York, NY.

FOR APPELLEE: R YAN C. H ARRIS

, Assistant United States Attorney (David C. James, on the brief ), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from a February 4, 2016 judgment of the United States District Court for the Eastern District of New York (Glasser, J. ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is DISMISSED in part and
AFFIRMED in part.

Defendant-Appellant Jeffery Ritter appeal s his sentence imposed by the district
court after his conviction of vi olating 18 U.S.C. § 2250 for failure to register as a sex
offender. The district court sentenced Ritte r to a term of 60 m onths’ imprisonment, consecutive to his sentence for underlying Ne w York state convictions for committing a criminal sexual act, robbery, assault, and sexua l abuse. On appeal, Ritter argues that his plea was not knowing and voluntary due to ineffe ctive assistance of counsel. He contends that his attorney was constitutionally ineffec tive by failing to object to the purportedly improper calculation of his U.S. Sentencing Gu idelines range in the plea agreement (as well as at sentencing). Specifically, Ritte r argues that the Guidelines calculation erroneously considered one of his prior Nebras ka state convictions as qualifying him as a Tier III sex offender under 42 U.S.C. § 16911 , rather than as a Tier I sex offender (resulting in an increase of four levels to his base offense level under the U.S. Sentencing Guidelines).

According to Ritter, the calculation of the Guidelines range in the plea agreement should have been performed using the “categor ical approach” to the state crime of first degree sexual assault to determine whether he was properly assigne d Tier III status. Instead, it allegedly looked to the facts underlying the prior state conviction in Nebraska
to determine whether or not th e crime corresponded to a Tier III offense under 42 U.S.C. § 16911. Ritter also contends that his federa l sentence must run c oncurrently to his New York state sentence under § 5G1.3 of the U. S. Sentencing Guidelines. The government argues that Ritter has waived his right to this appeal, that his counsel was not ineffective, that the Guidelines do not require concurrent te rms in this situation, and that the district court properly exercised its discretion in im posing consecutive term s. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

1. Ritter’s Ineffective Assistance of Counsel Claim and Appeal Waiver

A threshold question is whether Ritter has waived his right to appeal his sentence,
and whether that waiver is unenforceable as a result of ineffective assistance of counsel. “Waivers of the right to appeal a sentence are presumptively enforceable.” United States
v. Arevalo , 628 F.3d 93, 98 (2d Cir. 2010). However, we recognize an exception to the presumptive enforcement of appellate waiver s: a waiver in a plea agreement “does not . . . act as a waiver against an appeal on the basis that the plea itself, including the waiver, was not inte lligent or voluntary.” United States v. Roque , 421 F.3d 118, 121 (2d3 Cir. 2005). In seeking this exception through an ineffective assistance of counsel claim, “the [defendant] must show that th e plea agreement was not knowing and voluntary . . . because the advi ce he received from counsel was not within acceptable
standards.” Parisi v. United States , 529 F.3d 134, 138 (2d Cir. 2008) (internal citations and quotation marks omitted).

Ritter entered into a plea ag reement with the government on September 24, 2015. The plea agreement contained a provision that stat ed “[t]he defendant agrees not to file an appeal . . . the conviction or sentence in th e event that the Court imposes a term of imprisonment of 87 months or below.” Appellant’s App’x 18. The plea agreement also stated that “[i]f the Guidelines offense level . . . determined by the Probation Department or the Court, is, for any reason, including an error in the estimat e, different from the estimate [given in the plea], th e defendant will not be entitled to withdraw the plea . . . .”
Id.
Ritter contends that his counsel should have objected to the plea agreement on the basis that his Guidelines range was calcula ted incorrectly by relying on his erroneous Tier III designation. Based on that Tier III designation, the plea agreement and the PSR
included a calculation of Ritter’s Guidelines range using a base offense level of 16, which corresponds to the ba se offense level for a conviction under 18 U.S.C. § 2250 committed by a Tier III sex offender. As part of his cl aim here, Ritter argues that a “categorical approach” to analyzing the qualifying Nebraska state conviction would have resulted in a lower Tier designation and thus a reduced Guidelines range. To the extent Ritter attempts on this appeal to lodge a direct attack on the District Court’ s Guidelines calculation, such attack is clearly barred by the appeal waiver. See Arevalo , 628 F.3d at 98.

Ritter indirectly contends th at but for his counsel’s a lleged miscalculation of his status as a Tier III offender (and his resulti ng Guidelines range in the agreement, the PSR, and at sentencing, to which counsel di d not object), he would not have accepted the plea agreement with its waiver of appeal s for sentences less than 87 months. See Appellant’s Br. 9-10. When faced with a claim for ineffec tive assistance of counsel on direct appeal, we may: “(1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas cor pus pursuant to 28 U.S.C. § 2255; (2) remand the claim to th e district court for necessary factfinding; or (3) decide
the claim on the record before us.” United States v. DeLaura , __F.3d __, 2017 WL 2407756, at *4 (2d Cir. June 5, 2017). We are “generally di sinclined to resolve
ineffective assistance claims on direct review.” United States v. Gaskin , 364 F.3d 438, 467 (2d Cir. 2004). This is because, as th e Supreme Court has noted, such claims “ordinarily will be litigated in the first instance in the district court, the forum best suited to developing the facts necessary to determin ing the adequacy of representation . . . .”
Massaro v. United States , 538 U.S. 500, 505 (2003).4 Because an ineffective assist ance of counsel claim surviv es the appeal waiver only
where the claim concerns “the advice [the defendant] received from counsel,” Parisi , 529 F.3d at 138, the resolution of Ritter’s contention depends on factual findings. Here, Ritter’s ability to challenge hi s Guidelines calculation base d on his allege dly erroneous Tier III status (the real gravamen of his appe al) in spite of his appellate waiver depends
on the advice he received from counsel in the proces s of accepting his plea. 1 See id

. Absent sufficient evidence on th e record for this Court to determine the merits of the ineffective assistance claim, we find it “appr opriate to enforce the appeal waiver and dismiss the appeal.” U.S. v. Monzon , 359 F.3d 110, 119 (2d Ci r. 2004). An ineffective assistance of counsel claim is best brought be fore the district cour t and our decision here does not foreclose Ritter from reasserting his cl aims in a collateral pr oceeding pursuant to 28 U.S.C. § 2255. 2 See Massaro , 538 U.S. at 505.

2. Concurrency of Sentences

Ritter next contends that the district court should have ordered his federal sentence to run concurrently with hi s previously-imposed New York state sentence pursuant to U.S.S.G. § 5G1.3 because the state sentence was imposed fo r another offense that was
relevant conduct to the federal offense unde r the U.S. Sentencing Guidelines. Ritter did not expressly waive his right to appeal the concurrency of the se ntences, and defense counsel objected to the imposition of consecu tive sentences at sentencing. We therefore review the district court’s app lication of U.S.S.G. § 5G1.3(d) de novo , and the resulting imposition of consecutive sentence s for an abuse of discretion. United States v. Brennan

, 395 F.3d 59, 66 (2d Cir. 2005).

The district court did not err in applying U.S.S.G. § 5G1.3(d ), and did not abuse its discretion in requiring Ritte r’s 60-month federal sentence to run consecutively to his 15-year state sentence. Section 5G1.3(b) of the U.S. Sentencing Guidelines (which requires concurrent sentences) applie s only in situations “in which all of the prior offense is relevant conduct.” U.S.S.G. § 5G1.3 cmt. n.2(A) (emphasis added). “Cases in which only part of the prior offense is relevant conduct to the instant offense are covered under subsection (d).” Id. Under § 5G1.3(d), the district court has discretion to impose a sentence concurrently or cons ecutively, as it chooses. See § 5G1.3(d). The state court imposed Ritter’s 15-year sentence for his convi ction on five offenses, only two of which

1 We express no view on whether the categorical appro ach applies to the federal sexual abuse statutes, 18 § 2241 et seq. , or on whether the Nebraska statute under wh ich Ritter was convicted corresponds to a Tier I, II, or III offense.

2 Our ruling to this effect is not based on any c onclusions about the merits of Ritter’s potential § 2255
claims even as to those that ch allenge the plea agreement process. See Parisi , 529 F.3d at 139.5 were relevant conduct for his federal offense. Therefore, subsection (d) applies, and the
district court did not abuse its discretion in ordering the senten ces to run consecutively, as
it is clear from the record that the district court considered the appropriate factors in making that decision.

3. Conclusion

For the foregoing reasons, we dismiss Ritter’s claim of in effective assistance of
counsel. We further conclude that the dist rict court did not err in determining its discretion to impose consecutive sentence s nor abuse its discretion in imposing
consecutive sentences. We have considered Ritter’s remaining argum ents and conclude that they are with out merit. We therefore DISMISS the a ppeal as to ineffective assistance of counsel and AFFIRM the judgment of the district court as to consecutive sentences.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court