14-3661-cr
United States v. Morales

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 ELECTRON IC 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

22 nd day of January, tw o thousand eighteen.

Present: ROSEMARY S. POOLER, GERARD E. LYNCH, SUSAN L. CARNEY, Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 14-3661-cr

RAMON MORALES, a/k/a Sealed Defendant 2, a/k/a Seven,

Defendant-Appellant

. 1

_____________________________________________________

Appearing for Appellant: John S. Wallenstein, Garden City, NY.

Appearing for Appellee: Noah Falk, Assist ant United States Atto rney (Anna M. Skotko, Assistant United States Attorney, on the brief ), for Joon H. Kim, Acting United States Attorney fo r the Southern District of New York, New York, NY.

Appeal from the United States District C ourt for the Southern Di strict of New York (Furman, J. ).

1 The Clerk of the Court is respectfully directed to amend the caption as above

.2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

.

Ramon Morales appeals from the Septembe r 23, 2014 judgment of conviction entered in
the United States District Court for the Southern District of New York (Furman, J .), following Morales’s plea of guilty to one c ount of conspiracy to distribute and possess with intent to

distribute controlled substances in violation of 21 U.S.C. §§ 8 41(a)(1) and one count of using and carrying a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. § 924(c). Morales was sentenced principally to 216 months’ imprisonment. We held this case pending decisions by the Supreme Court in Beckles v. United States , 137 S.Ct. 886 (2017), and
our Court in United States v. Jones , 2017 WL 4456719 (2d Cir. 2017), as amended October 5, 2017. The parties submitted supplemental briefing on th e issues of (1) whethe r, in light of the appeal waiver contained in the plea agreement, Morales may challenge the district court’s determination that Morales qualified as a ca reer offender under U.S.S.G. § 4B1.1; and (2) whether, following Jones , a conviction for robbery in the th ird degree in New York is a “crime of violence” for purposes of determining whet her a defendant is a career offender under the Guidelines. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

As part of his plea agreement with the govern ment, Morales agreed th at that he would not file a direct appeal, mount a coll ateral challenge, or seek a senten ce modification of any sentence imposed on him within or below the stipulated Guideline range of 322 to 387 months. He was sentenced to 216 months’ imprisonment—well u nder the stipulated range—such that his appellate waiver is binding absent some breach of that agreement. See, e.g., United States v.
Salcido-Contreras , 990 F.2d 51 (2d Cir. 1993) (noting that “knowing and voluntary waivers of a defendant's right to appeal a sentence within an agreed Guidelines range are enforceable”). Morales argues that the government breached th e plea agreement by advocating for a higher drug quantity than set forth in the agreement in violation of its agreement not to do so.

Plea agreements are construed strictly ag ainst the government, and the court does not “hesitate to scrutinize the government's conduct to ensure that it comports with the highest

standard of fairness.” United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999). “To determine whether a plea agreement has been breached, we ‘look[ ] to the reasonable understanding of the parties as to the term s of the agreement.’” United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002) (quoting United States v. Colon, 220 F.3d 48, 51 (2d Cir. 2000)). “When the Government breaches a plea agreement, the defendant is entitl ed to either withdraw his plea or have his agreement specifically performed.” United States v. Cimino, 381 F.3d 124, 127 (2d Cir. 2004).

In urging that we find a breach, Morales relies heavily on our summary order in United
States v. Robinson , 634 F. App’x 47 (2d Cir. Jan. 15, 2016). There, we found that the government breached a similar plea agreement with one of Morales’s codefendants when, in its sentencing submission and at sentencing, it de scribed Robinson as an active and managing member of a high-volume drug crew. Id. at 50. We found the breach was not de minimis, as:3 The government’s breach of the pl ea agreement directly affected the sentence. The district judge had not previously raised the possibility of a role enhancement, and specifically noted that the question had not occurred to him until after he read the government’s September 3 sentenci ng letter. The court then proceeded to apply the enhancement.

Id. at 51 (internal citation omitted). We then vaca ted the sentence and remanded for resentencing before a different judge.

Morales, by virtue of being sentenced afte r Robinson and other codefendants, stands on a different footing. By the time Morales was sentence d, the district court raised the issue of drug quantity and leadership in other sentencing proceedings, such that the government legitimately anticipated the district court’s questions on th e issue. Because the government simply responded to questions that the court had already asked in related senten cing proceedings, did not advocate for a higher sentence, and did not influence the court’s factual understand ing of the amount of

crack attributable to the cons piracy, its sentencing submission did not run afoul of the plea agreement. As a result, Morales’s appeal waiver remains in place and bars the various claims he
raises before this Court.

We have considered the remainder of Mora les’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk