17-3590-cr

United States v. Lewis

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 

23rd day of August, two thousand eighteen.

Present: JON O. NEWMAN,

ROSEMARY S. POOLER,

 Circuit Judges.

DENISE COTE,

1

District Judge.

____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 17-3590-cr

RASHOD LEWIS, AKA SANTANA, AKA EL_CHAPOBALLA, 

AKA SANTANA.BUGATTI, 

Defendant-Appellant.

2

_____________________________________________________

Appearing for Appellant: Azra Feldman, Feldman & Feldman, Uniondale, N.Y.

Appearing for Appellee: Andrew C. Adams, Assistant United States Attorney (Sarah K. 

Eddy, Assistant United States Attorney, on the brief), for Geoffrey 

S. Berman, United States Attorney for the Southern District of 

New York, New York, N.Y.

 1 Judge Denise Cote, United States District Court for the Southern District of New York, sitting 

by designation.

2 The Clerk of the Court is directed to amend the caption as above. 
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Appeal from the United States District Court for the Southern District of New York (Wood, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is DISMISSED in 

part and AFFIRMED in part. 

Rashod Lewis appeals from the November 2, 2017 judgment of conviction sentencing 

him to 360 months’ imprisonment, followed by five years’ supervised release, following his plea

of guilty to one count of use and possession of firearms in furtherance of narcotics trafficking, in 

violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. We assume the parties’ familiarity with the 

underlying facts, procedural history, and specification of issues for review.

Lewis entered into a plea agreement with the government that contained a waiver of his 

appellate rights, in which it was 

agreed (i) that the defendant will not file a direct appeal; nor bring 

a collateral challenge, including but not limited to an application 

under Title 28, United States Code, Section 2255 and/or Section 

2241; nor seek a sentence modification pursuant to Title 18, United 

States Code, Section 3582(c), of any sentence within or below the 

Stipulated Guidelines Range of 360 months’ to life imprisonment, 

and (ii) that the Government will not appeal any sentence within or

above the Stipulated Guidelines Range. This provision is binding 

on the parties even if the Court employs a Guidelines analysis 

different from that stipulated to herein. Furthermore, it is agreed

that any appeal as to the defendant’s sentence that is not foreclosed 

by this provision will be limited to that portion of the sentencing 

calculation that is inconsistent with (or not addressed by) the above 

stipulation. The parties agree that this waiver applies regardless of 

whether the term of imprisonment is imposed to run consecutively 

to or concurrently with the undischarged portion of any other 

sentence of imprisonment that has been imposed on the defendant 

at the time of sentencing in this case. The defendant further agrees 

not to appeal any term of supervised release that is less than or 

equal to the statutory maximum. The defendant also agrees not to 

appeal any fine that is less than or equal to $500,000 and the 

Government agrees not to appeal any fine that is greater than or 

equal to $50,000.

Gov’t App’x at 4. 

“It is . . . well established that a knowing and voluntary waiver of the right to appeal is 

generally enforceable.” United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) (internal 

citation omitted). “[E]xceptions to the presumption of the enforceability of a waiver . . . occupy a 

very circumscribed area of our jurisprudence.” United States v. Gomez-Perez, 215 F.3d 315, 319 
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(2d Cir. 2000). One such exception is “where the waiver was not made knowingly, voluntarily, 

and competently.” United States v. Burden, 860 F.3d 45, 51 (2d Cir. 2017) (internal citation and 

quotation marks omitted). 

Lewis primarily argues that the magistrate judge failed to explore the ramifications of his 

appellate waiver with him in sufficient detail during his plea colloquy, such that his waiver was 

not knowing and voluntary. Having examined the plea colloquy, we disagree. The magistrate 

judge went through each part of the waiver with Lewis and asked if he understood, and Lewis 

agreed that he understood. The appellate waiver is enforceable. 

Whether an agreement not to appeal from a term of supervised release equal to or less 

than the statutory maximum permits an appellate challenge to the conditions of such release need 

not be decided in this case because the government has not relied on the appeal waiver provision 

of the plea agreement to preclude consideration of the merits of those conditions. Cf. United 

States v. Franco, No. 17-891, 2018 WL 2077889 (2d Cir. May 4, 2018) (summary order).

On the merits, Lewis’s challenge to his conditions of supervised release fail. The 

judgment’s specification that the probation officer would determine the amount of co-payment 

for the cost of treatment was an administrative implementation of the oral sentence, and was 

valid, see United States v. Bull, 214 F.3d 1275, 1278-79 (2d Cir. 2000). Also valid was the 

condition that the Appellant respond truthfully to inquiries from the probation officer. See United 

States v. Johnson, 446 F.3d 272, 278 (2d Cir. 2006). That condition need not be accompanied by 

a caveat concerning the availability of a self-incrimination privilege.

We have considered the remainder of Lewis’s arguments and find them to be without 

merit. Accordingly, the appeal hereby is DISMISSED in part and AFFIRMED in part.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk