13 -42 07 -cr

United States v . Ko ehn

1 UNI TED STATES COURT OF A PPEAL S 2 FOR THE SECOND CI RCUI T 3 4 SUMMAR Y ORDER 5 6 RULING S BY SUM M ARY O RDER DO NOT HA VE PRECEDENT IAL EFFECT. CITAT ION TO A 7 SUM M ARY O RDER FILED ON O R AFTER JA NUARY 1 , 2 00 7, IS PERM ITT ED AND IS GOVERNED 8 BY FEDERAL RULE OF APP ELL ATE PROCEDURE 32 .1 AND THIS CO URT’S LOCAL RULE 32 .1. 1. 9 WHEN CITING A SUM M ARY O RDER IN A DO CUM ENT FILE D WITH THIS COUR T, A PAR TY 10 M UST CITE EITHER THE FEDERAL APP ENDIX OR AN ELE CTRONIC DATABA SE (WITH THE 11 NOTATION “SUM M ARY O RDER”). A P ARTY CITING A SUM M ARY O RDER M UST SERVE A CO PY 12 OF IT ON ANY P ARTY NOT REPRESENTE D B Y COU NSEL. 13 14 15 At a stated Te rm of the United States Court of A ppeals for the Second Circuit, held at the 16 Thurg ood Marsha ll United States Courthouse, 40 Foley Square, in the City

of Ne w York on the 17 14 day

of Oc tober, two thousand f ourtee n. t h 18 19 Present: ROSEMARY S. P OOL ER, 20 REENA RAGGI
, 21 PETER W . HAL L , 22 Circuit Judges

. 23

_____________________________________________________ 24 25 UNI TED STATES OF AMERI CA, 26 27 Appellee
, 28 29 v. 13-4207-c r 30 31 J OSEPH A. KOEHN, 32 33 Defendant- Appellant

. 34

__________________________________________ 35 36 Appea

ringfor Appe llant: Michae l J . Stachowski, Buf falo, N.Y

. 37 38 Appea

ringfor Appe llee: Stephan J . Ba czy nski, Assistant United St ates Attorne y of Counsel 39 for the Wester n District of Ne w York, ( Wil liam J . Hochul, Jr., 40 United States Attorney
, on the brief ) B uffa lo, N.Y. 41 42 Appea l from the United States District Court for the Western District of N ew Yor k 43 (Skretny
, J. ).1 2 ON CONSIDERATION WHE REOF, IT IS HEREB Y ORDERED, ADJUD GED, 3 AND DECREED that the appe al be a nd it hereby

is DISMISSE D

. 4 5 J oseph A. Koe hn appea ls from the Oc tober 18, 2013 judgment of convic tion and sentenc e 6 enter ed by

the United States District Court for the Western District of Ne w York ( Skretny
, J. ). 7 The district cour

t imposed a below-Guideline sentenc e of 240 months’ imprisonment afte r Koe hn 8 pleade d guilty

pursuant to a plea

agree ment to one count of attempted production of c hild 9 pornography

in violation of 18 U.S.C. § 2251(a), and one count of possession of c hild 10 pornography

in violation of 18 U.S.C. § 2252A(a)(5) (b). We assume theparties’ familiarity with 11 the under lying f

acts, proc edura l history , and spec ification of issues for revie w. 12 13 Koehn a

rgues that his sentenc e is substantively unrea sonable, but his plea a g ree ment 14 expressly

waived the right to bring this cha lleng e. The agree ment provided in re levant par t that 15 the def

endant “ knowing ly

waives the right to appeal a nd collater ally

attack a ny component of a 16 sentenc e imposed by the Court which fa lls withi n or is less than . . . 324 to 405 months . . . 17 notwithstanding the ma nner in whic h the Court deter mines the sentenc e.” B eca use the district 18 court’s se ntence of 240 months’ imprisonment clearly falls within the bounds of the plea 19 agree ment, we do not re ach the merits of Koe hn’s claims unless we find the wa iver 20 unenfor cea

ble. 21 22 “Waivers of the right to appeal a

sentenc e ar e pre sumptively enfor cea ble,” United States 23 v. Riggi , 649 F.3d 143, 147 ( 2d Cir. 2011) (interna l quotation marks omitted), and a w aiver will 24 be tre ated a s valid so long a s it is “knowingly , voluntarily , and compe tently provided by

the 25 defe ndant,” United States v. Gom ez-Pe rez , 215 F.3d 315, 318 ( 2d Cir. 2000). Def endant doe s not 26 dispute that he ente red his plea knowing ly

and voluntarily . Rather, heasser ts we should not 27 enfor ce his wa iver be cause the three -leve l reduc tion for ac cepta nce of responsibility

he ther eby 28 rec eived c onstitut es inade quate c onsideration. In so arg uing, K oehn re lies on case s in which we 29 have a

pplied a “c lose look” to “unorthodox” appellate waiver s, and dec lined to enforc e them 30 wher e the de fenda nt “re ceive d very

littl e bene fit in ex chang e for [hi s] pl ea of

guilty .” United 31 States v. Goodman , 165 F.3d 169, 174 ( 2d Cir. 1999) (interna l quotation marks omitted); see 32 United States v. Rosa , 123 F.3d 94, 99 ( 2d Cir. 1997). These case s areinapposite bec ause the 33 waiver

at issue is not unorthodox . “We have regularly enfor ced know ing a

nd voluntary

waiver s 34 in the conventional f orm that waive the right to appeal a sentenc e withi n (

or below) an agreed 35 guideline range .” Goodman , 165 F.3d at 174 (emphasis in orig inal); see also United States v

. 36 Jacobson , 15 F.3d 19, 22–23 ( 2d Cir. 1994). 37 38 “The ‘dec isive considerations’ motivating our de cision to enforc e, vel non , an appe al 39 waiver

are the ‘nature of the right at issue’ and ‘ whether the sentenc e wa s rea ched in a manner 40 that the plea a g ree ment did not anticipate.’” United States v. Coston , 737 F.3d 235, 237 ( 2d Cir. 41 2013) (quoting Riggi , 649 F.3d at 148). Her e, def endant stipulated to the c orre ctness of a reduc ed 42 Guideline ca lculation, and re ceive d, not only the promised thre e-le vel re duction, but also a 43 sentenc e that fe ll seven year s below the low e nd of the Guide line rang e conte mplated by the 44 parties. “ Whil e re ceipt of the expected bene fits of a plea is, of course , not in and of itself a r eason 45 to hold a defe ndant to a plea agree ment which is otherwise invalid,” it speaks to the “ove rall 46 fairne ss, and there by the validity , of that agree ment.” Rosa , 123 F.3d a t 101-02. Be cause the plea

21 agree ment here was other wise valid, we hold that it precludes Koe hn’s pre sent cha lleng es to the 2 substantive rea sonablene ss of his sentence

. 3 4 Even if Koe hn had not waive d the right to bring his pre sent appe al, he would not be 5 entitled to relief be cause his sentencing challeng e fa ils on the merits. “The district cour ts have 6 discretion to selec t an appr opriate se ntence , and in doingso are statutorily bound to consider the 7 fac tors listed in [ 18 U.S.C.] § 3553(a) , including the advisory Guidelines ra

ng e.” United States v. 8 Cavera , 550 F.3d 180, 188 ( 2d Cir. 2008). Nonethe less, “the r equire ment that a sente ncingjudge 9 consider a

n 18 U.S.C. § 3553(a) fa ctor is not sy nony mous with a require ment [that] the factor be 10 g iven deter

minative or dispositive weight in the particular case .” United States v. Florez , 447 11 F.3d 145, 157 ( 2d Cir. 2006) (alter ations in origina l) (interna l quotation marks omitted). The 12 rec ord below r evea ls that the district court ca ref ully considere d the sentenc ing f actor s set out in 13 Section 3553(a) in addition to thi s court’s guidance in United States v. Dorv ee , 616 F.3d 174 ( 2d 14 Cir. 2010) and United States v. Tutty , 612 F.3d 128 ( 2d Cir. 2010). The district cour t also fully 15 explained its reasons for disc reditingthe asser tions of the defe ndant’s expert that Koe hn’s 16 persistent attempts to procur e a f our-year -old child wer e mer e fa ntasy , and we identify

no clea r 17 err or in this conclusion. Nor ar e we persua ded that def endant’ s sentence—seven year s below the 18 low end of the agree d-upon guidelines rang e—“c annot be located within the rang e of pe rmissible 19 decisions.” Cavera , 550 F.3d at 189 (internal quotation mar ks omitt ed). 20 21 We have c onsidered the rema inder of K oehn’s a rguments and find them to be without 22 merit. Acc ording ly , the appe al is here by DI SMI SSED. 23 24 25 FOR THE COURT: 26 Catherine O ’Ha g an Wolfe, Clerk 27 28 29 30 31

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