* Judge Miriam G. Cedarbaum, of the United States District Court for the Southern District of New York, sitting by designation. 10-2645-cr United States v. Joseph
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**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**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT** **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,** **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 16 thday of February, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 SUSAN L. CARNEY, 7 Circuit Judges 8 MIRIAM G. CEDARBAUM, * 9 District Judge. 10 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , 16 17 v. 10-2645-cr 18 19 RORY JOSEPH, 20 21 Defendant-Appellant. 22 23 24 25 26 27 28 292 FOR APPELLANT: NICHOLAS J. PINTO, New York, NY 1 2 FOR APPELLEE: CHRISTOPHER M. MATTEI, Assistant United 3 States Attorney (Robert M. Spector, 4 Assistant United States Attorney, on the 5 brief ), for David B. Fein, United States 6 Attorney for the District of Connecticut, 7 New Haven, CT 8 9 Appeal from the United States District Court for the 10 District of Connecticut (Hall, J. ). 11 12 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 13

**AND DECREED**that the judgment of United States District 14 Court for the District of Connecticut is **AFFIRMED**

. 15 Appellant appeals from a judgment of the United States 16 District Court for the District of Connecticut (Hall, J .), 17 which imposed the statutory maximum sentence of 120 months’ 18 imprisonment, followed by three years of supervised release. 19 Pursuant to a plea agreement, Defendant-Appellant Rory 20 Joseph pleaded guilty to a one-count indictment charging him 21 with unlawful possession of a firearm by an individual who 22 is subject to a restraining order in violation of 18 U.S.C. 23 §§ 922(g)(8) and 924(a)(2). On June 24, 2010, the district 24 court sentenced Joseph to the statutory maximum of 120 25 months’ imprisonment, followed by three years of supervised 26 release. Joseph requests that the Court vacate the sentence 27 and argues that the Government breached the plea agreement. 283 Joseph also claims that the district court committed 1 procedural and substantive error when determining his 2 sentence. We assume the parties’ familiarity with the 3 underlying facts, the procedural history, and the issues 4 presented for review. 5 To determine whether a plea agreement has been 6 breached, we “look[] to the reasonable understanding of the 7 parties as to the terms of the agreement.” United States v. 8 Riera , 298 F.3d 128, 133 (2d Cir. 2002) (internal quotation 9 marks and citations omitted). Although we typically review 10 the district court’s interpretation of a plea agreement de 11

novo , id. , where, as here, the defendant fails to object 12 below to the government’s alleged breach of a plea 13 agreement, the defendant has forfeited the claim unless he 14 can show plain error under Federal Rule of Criminal 15 Procedure 52(b). Puckett v. United States , 556 U.S. 129, 16 134 (2009). Joseph is not entitled to relief because not 17 only is there no plain error, there is no error at all. 18 Joseph’s principal argument on appeal is that the 19 Government breached the plea agreement by using information 20 known to the Government at the time the plea agreement was 21 executed to advocate later, during sentencing, for a two- 224 level enhancement for obstruction of justice and against a 1 reduction for acceptance of responsibility. Relying heavily 2

on United States v. Palladino , 347 F.3d 29 (2d Cir. 2003), 3 Joseph argues that because the Government learned (and did 4 not disclose to Joseph) that he was soliciting Cornelius 5 Taylor to murder his former girlfriend in October 2009—two 6 months before the plea agreement was executed—the Government 7 could not rely on this conduct at sentencing. 8 We conclude that the Government did not breach the plea 9 agreement by relying on this conduct. Joseph’s campaign to 10 orchestrate his former girlfriend’s murder was still under 11 investigation when the plea agreement was signed and, 12 therefore, provides a “good faith post-agreement basis” to 13 advocate for sentencing enhancements and against a reduction 14 for acceptance of responsibility. United States v. Roe , 445 15 F.3d 202, 210 (2d Cir. 2006). Indeed, the conduct at issue 16 continued for two months after the execution of the 17 agreement. Moreover, Palladinois distinguishable. There, 18 we held that the government breached the plea agreement by 19 seeking an enhancement based on information known to the 20 government before the plea agreement. Palladino , 347 F.3d 21 at 34. Here, by contrast, the information was still under 225 investigation when the plea agreement was executed. 1 We also reject Joseph’s contentions that the Government 2 breached the plea agreement by advocating for additional 3 enhancements other than those specifically outlined in the 4 plea agreement and by advocating for a non-Guideline 5 sentence. The Government’s actions were entirely consistent 6 with the plain language of the plea agreement, which states: 7 “The parties reserve their respective rights to argue for or 8 oppose additional adjustments to, and departures from, the 9 applicable guideline range as determined by the Court. 10 Additionally, both parties reserve their right to argue for 11 and/or oppose a non-guideline sentence.” 12 We turn next to Joseph’s claim that the district court 13 committed procedural and substantive error when determining 14 his sentence. We review the sentence imposed by the 15 district court to determine whether it is reasonable. 16 United States v. Cavera , 550 F.3d 180, 187-88 (2d Cir. 2008) 17 ( en banc ); Gall v. United States, 552 U.S. 38, 46 (2007). 18 Reasonableness review, which has both procedural and 19 substantive components, is “akin to review for abuse of 20 discretion.” United States v. Fernandez , 443 F.3d 19, 27 21 (2d Cir. 2006). 226 First, we reject Joseph’s claim that the district court 1 committed procedural error by imposing a two-level 2 enhancement for obstruction of justice under U.S.S.G. § 3 3C1.1. Generally, in order to apply this enhancement, the 4 district court must find that the defendant acted with 5 “specific intent to obstruct justice.” United States v. 6 Woodard , 239 F.3d 159, 162 (2d Cir. 2001) (internal 7 quotation marks omitted). Here, the district court found 8 that the enhancement was proper because following his 9 arrest, from August 2009 to February 2010, Joseph attempted 10 to solicit Taylor to murder his former girlfriend. In 11 making this finding, the district court found the testimony 12 of Taylor to be particularly credible. We cannot say that 13 this was clearly erroneous. Taylor’s testimony was also 14 corroborated by the testimony of Special Agent Wheeler. 15 Moreover, we reject Joseph’s argument that the district 16 court erred by finding that Joseph attempted to arrange his 17 former girlfriend’s murder with the specific intent of 18 making her unavailable for sentencing. Taylor testified 19 that Joseph’s motivation for murdering his former girlfriend 20 was that “[h]e didn’t want her to be around where she can 21 testify against him.” Indeed, even if, as Defendant argues, 227 he was unaware of his former girlfriend’s role in the 1 prosecution in August 2009 when he started soliciting Taylor 2 to murder her, there is no doubt that he would have been 3 aware of her potential role by February 2010 after receiving 4 the Government’s discovery materials. 5 Second, the district court did not commit procedural 6 error by refusing to grant Joseph a reduction to his offense 7 level for acceptance of responsibility under U.S.S.G. § 8 3E1.1(a). The reduction is unavailable, except in 9 “‘extraordinary cases,’” to a defendant properly found to 10 merit an obstruction-of-justice enhancement. United States 11 v. Champion , 234 F.3d 106, 110 (2d Cir. 2000) (per curiam) 12 (quoting U.S.S.G. § 3E1.1, cmt. n.4). 13 Joseph argues that the district court erred in not 14 granting the reduction because he did not frivolously 15 contest relevant conduct. This misses the point. The 16 district court focused on Joseph’s post-arrest conduct, not 17 Joseph’s denials of Taylor’s testimony. The district court 18 stated: “I don’t see how a person who commits a crime . . . 19 [and] who then while incarcerated . . . does the same thing 20 over again can be said to have accepted responsibility for 21 the offense.” Considering that Joseph solicited Taylor to 228 murder his former girlfriend for over five months, there was 1 more than adequate evidence in the record to make this 2 finding. 3 Third, we find no procedural error in the district 4 court’s upward departure based on extreme psychological 5 injury to the victim, Joseph’s former girlfriend. The 6 Guidelines permit an upward departure when psychological 7 injury to the defendant's victim is “much more serious than 8 that normally resulting from commission of the offense.” 9 U.S.S.G. § 5K2.3. In addition, there must be “a substantial 10 impairment of the intellectual, psychological, emotional, or 11 behavioral functioning of a victim, when the impairment is 12 likely to be of an extended or continuous duration, and when 13 the impairment manifests itself by physical or psychological 14 symptoms or by changes in behavior patterns.” United States 15 v. Lasaga , 328 F.3d 61, 65-66 (2d Cir. 2003) (quoting 16 U.S.S.G. § 5K2.3). 17 Here, the district court engaged in a thorough analysis 18 of this Court’s case law in concluding that a departure was 19 appropriate. The district court noted: “It strikes me that 20 the victim in this case clearly demonstrates extreme 21 isolation, personality change, unusual suspicion . . . [a]nd 229 prolonged fear, prolonged because of a very active defendant 1 that continued long after the commission of the offense of 2 conviction.” The district court also highlighted the 3 victim’s sense of guilt about the endangerment of her 4 family, which the district court observed was not “a 5 psychological harm that would normally be experienced in the 6 commission of this crime.” Accordingly, we find no error in 7 the district court’s departure. 8 Finally, we need not consider Joseph’s claim that the 9 district court’s sentence was substantively unreasonable. 10 Joseph did not raise this issue until his reply brief and, 11 therefore, it has been waived. See Conn. Bar Ass’n v. 12 United States , 620 F.3d 81, 91 n.13 (2d Cir. 2010). 13 We have considered Joseph’s remaining arguments and, 14 after a thorough review of the record, find them to be 15 without merit. 16 For the foregoing reasons, the judgment of the district 17 court imposing a sentence principally of 120 months’ 18 imprisonment is hereby **AFFIRMED**

. 19 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 24