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 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 for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

22nd day of January, two 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.

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_____________________________________________________ 

 

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

Appearing for Appellee: Noah Falk, Assistant United States Attorney (Anna M. Skotko, 

Assistant United States Attorney, on the brief), for Joon H. Kim, 

Acting United States Attorney for the Southern District of New 

York, New York, NY. 

 Appeal from the United States District Court for the Southern District of New York 

(Furman, J.). 

 

1 The Clerk of the Court is respectfully directed to amend the caption as above. 
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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 September 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 count of conspiracy to distribute and possess with intent to 

distribute controlled substances in violation of 21 U.S.C. §§ 841(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 the issues of (1) whether, in light of the 

appeal waiver contained in the plea agreement, Morales may challenge the district court’s 

determination that Morales qualified as a career offender under U.S.S.G. § 4B1.1; and (2) 

whether, following Jones, a conviction for robbery in the third degree in New York is a “crime 

of violence” for purposes of determining whether 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 government, Morales agreed that that he would not 

file a direct appeal, mount a collateral challenge, or seek a sentence 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 under 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 the 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 against 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 terms 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 entitled 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 described 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: 
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The government’s breach of the plea 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 sentencing letter. The court then 

proceeded to apply the enhancement. 

Id. at 51 (internal citation omitted). We then vacated the sentence and remanded for resentencing 

before a different judge. 

 Morales, by virtue of being sentenced after Robinson and other codefendants, stands on a 

different footing. By the time Morales was sentenced, 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 the issue. Because the government simply responded 

to questions that the court had already asked in related sentencing proceedings, did not advocate 

for a higher sentence, and did not influence the court’s factual understanding of the amount of 

crack attributable to the conspiracy, 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 Morales’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