13-1555-cr

United States v. Nicholson

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 

20th day of May, two thousand fourteen.

Present: JOHN M. WALKER, JR.,

ROSEMARY S. POOLER,

RICHARD C. WESLEY,

Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

 -v- 13-1555-cr

JAMES NICHOLSON,

Defendant-Appellant.

_____________________________________________________

Appearing for Appellant: Donald Mark Thompson, Easton Thompson Kasperek Shiffrin

LLP, Rochester, N.Y.

 

Appearing for Appellee: Joseph J. Karaszewski, Assistant United States Attorney, (William

J. Hochul, United States Attorney for the Western District of New

York, on the brief), Buffalo, N.Y.

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

(Geraci, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the appeal is DISMISSED.

James Nicholson appeals from the April 16, 2013 judgment of the United States District

Court for the Western District of New York (Geraci, J.) sentencing him principally to 57

months’ imprisonment following his guilty plea to five counts of bank robbery in violation of 18

U.S.C. § 2113(a). We assume the parties’ familiarity with the underlying facts, procedural

history, and specification of issues for review.

Waivers of the right to appeal a sentence are presumptively enforceable. United States v.

Gomez–Perez, 215 F.3d 315, 319 (2d Cir. 2000). “Knowing and voluntary appellate waivers

included in plea agreements must be enforced because, if they are not, the covenant not to appeal

becomes meaningless and would cease to have value as a bargaining chip in the hands of

defendants.” United States v. Granik, 386 F.3d 404, 412 (2d Cir. 2004) (internal quotation marks

omitted). “A violation of a fundamental right warrants voiding an appeal waiver.” United States

v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011). “On the other hand, other meaningful errors are

insufficient to void an appeal waiver.” Id.

Nicholson argues that his appellate waiver should not be enforced because the district

court “relied on improper reasons” in denying a downward departure based on the government’s

Section 5K1.1 motion. Specifically, Nicholson argues that the district court was not aware that it

could downwardly depart based on the 5K1.1 motion notwithstanding the fact that Nicholson

had received other consideration for his cooperation in his plea agreement. Relying on United

States v. Woltmann, 610 F.3d 37 (2d Cir. 2010), he argues this failure constituted an “abdication

of judicial responsibility and failure to recognize sentencing discretion.”

Nicholson’s reliance on Woltmann is misplaced. In Woltmann the district court based its

sentence solely on the range agreed to in the plea agreement, refusing to consider either the

Section 3553(a) factors or a Section 5K1.1 motion in support of a downward departure. 610

F.3d at 42-43. Indeed, the Woltmann court accused the parties of “improperly attempting to

repudiate or modify” the plea agreement by even filing the 5K1.1 motion. Id. at 41. We declined

to enforce the appeal waiver there because the district court “refused to consider the 5K1.1 letter

and the § 3553(a) factors on the ground that the appeal waiver and the sentencing range in the

Agreement obviated anything else.” Id. at 42. 

Here, however, the district court acknowledged that the government had moved for a

downward departure based on Nicholson’s cooperation. The sentencing colloquy makes clear

that the district court simply chose not to downwardly depart based on either the 5K1.1 motion

or the defendant’s sentencing memorandum. Instead, the district court concluded that the “facts

and circumstances of this case” did not warrant a lesser sentence. This does not rise to the level

of “an abdication of judicial responsibility,” Woltmann, 610 F.3d at 43 (internal quotation marks

omitted), or “being sentenced entirely at the whim of the district court,” United States v.

Buissereth, 638 F.3d 114, 118 (2d Cir. 2011) (internal quotation marks omitted). 

 

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We have examined the remainder of Nicholson’s arguments and find them to be without

merit. Accordingly, the appeal is DISMISSED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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