19

- 4374

- cr United States of America v. Kimmons



### 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 (WIT H 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 2 9 th da y of June , two thousand twenty

- two

. 3 4 P resent : 5 D EBRA A NN L IVINGST ON , 6 Chief Judge
, 7 J OSÉ A. C ABRANES , 8 M ICHAEL H. P ARK , 9 Circuit Judg es. 10

_____________________________________ 11 12 U NITED S TATES OF A MERICA , 13 14 Appellee
, 15 16

v. 19

- 4374

- cr 17 18 O LIVER K IMMONS , AKA O LLIE , AKA A LI , 19 20 Defendant

- Appellant

. 21

_____________________________________ 22 23 F or Appellee : K ATHERINE A. G REGORY , Assistant U.S. Attorney, for 24 Trini E. Ross, United States Attorney for the Western 25 District of New York, Buffalo, NY

. 26 27 For Defendant

- Appellant : M ARK A. F OTI , The Foti Law Firm, P.C.
, Rochester
, 28 NY. 29 302 Appeal from a judgment of the United States District Court for the Western District of New 1

York ( Vilardo
, J .)

. 2

UPON DUE CONSIDERATION , IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the appeal is DISMISSED

. 4

Defendant

- Appellant Oliver Kimmons (“ Kimmons ”) appeal s from the December 5, 2019 5
judgment of the United States District Court for the Western District of New York (Vilardo, J. ), 6
sentencing him t o a term of 20 years in prison followed by five years of supervised release

. 7
Kimmons pled guilty to one count of sex trafficking by force, fraud, or coercion under 18 U.S.C. 8

§ 1591(a) and (b)(1 ). The offense conduct involved Kimmons supplying heroin to women to get 9
them addicted to the drug, then coercing the women into engaging in commercial sex acts to fund 10
their addictions. At Kimmons’ sentencing hearing
, the district court permitted Kimmons’ former 11

co

- defendant
, Kathlyn Ventura (“Ventura”)
, to make a statement before the court about her 12
experience being exploited into drug selling and prostitution by Kimmons
, after the court 13

determined that she is a “crime victim” under 18 U.S.C. § 3771 ( e ) (2)(A). See 18 U.S.C. 14

§ 3771(a)(4) ( establishing th at a “crime victim” has the “ right to be reasonably heard at any public 15
proceeding in the district court involving

. . . sentencing ” )

. Kimmons objected prior to Ventura’s 16

remarks , asserting that she was not a “victim” of his offense conduct because she wa s not identified 17
as one of the five particular victims listed in the operative indictment, presentence investigation 18

report , or plea agreement

. On appeal, Kimmons argues that the district court procedurally erred 19
in permitting Ventura to make a statement at his sentencing hearing. In addressing this argument, 20
we assume the parties’ familiarity with the facts and record of prior proceedings, which we 21
reference only as necessary to explain our decision to DISMISS the appeal. 22

* * * 233 Kimmons’ appeal must be dismissed based on his waiver o f the right to appeal. 1

Kimmons’ plea agreement contains an appellate waiver provisio n. That provision states that, 2
although Kimmons has a “limited right to appeal” his sentence under 18 U.S.C. § 3742, he 3
“knowingly waives [that] right to appeal and colla terally attack any component of [his] sentence 4
imposed by the [district court] which falls within or is less than the sentencing range for 5
imprisonment
, . . . notwithstanding the manner in which the [district court] determines the 6
sentence.” Joint App’x 6 0. Here, Kimmons’ sentence fell within the guidelines range stated in 7
the plea agreement of 210 to 262 months’ imprisonment

. 8

“ Waivers of the right to appeal a sentence are presum ptively enforceable.” United States 9

v. Arevalo , 628 F.3d 93, 98 (2d Cir. 201 0) (citation omitted)

. “Knowing and voluntary appellate 10
waivers included in plea agreements must be enforced because, if they are not, the covenant not to 11
appeal becomes meaningless and would cease to have value as a bargaining chip in the hands of 12

defend ants.” Id. (quoting United States v. Granik
, 386 F.3d 404, 412 (2d Cir. 2004) ). We thus 13

find appellate waivers unenforceable “only in very limited situations, ‘ such as when the waiver 14

was not made knowingly, voluntarily, and competently, when the sentence was imposed based on 15
constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the 16
government breached the plea agreement, or when the sentencing court failed to enunciate any 17

rationale for the defendant ’ s sentence .’” Id. (quoting United States v. Gomez

–

Perez , 215 F.3d 18
315, 319 (2d Cir. 2000) ); see United States v. Garigen , No. 21

- 112, 2022 WL 258568, at *1 (2d 19

Cir. Jan. 28, 2022) (summary order)

. Kimmons does not challenge the validity of his appellate 20
waiver on any of the above prescribed grounds
, see Arevalo , 628 F.3d at 98
, and his appellate 21

waiver is thus enforceable , barring the instant claim
, see Garigen , 2022 WL 2585 68, at *1

. 22
But even if we were to ignore Kimmons’ appellate waiver (contrary to our precedent) we 234 would nevertheless reject Kimmons’ argument that the supposed procedural error to which he 1
points entitles him to any relief

. A ssuming arguendo that Ventura does not qualify as a statutory 2

“ crime victim” of Kimmons’ sex trafficking conviction, see 18 U.S.C. § 3771(e)(2)(A), the district 3

court did not abuse its discretion or otherwise err in permitting her to make a statement during the 4
sentencing heari ng. Even where a speaker “[does] not qualify as a statutory ‘victim,’” Congress 5

“ has not placed arbitrary limits on what information a district court may consider at sentencing .” 6

United States v. Smith , 967 F.3d 198, 215 (2d Cir. 2020)

. Indeed, district courts have “ broad 7
discretion both as to the type of information they may consider in imposing sentence and the source 8

from which that information derives.” Id. at 216 (quoting United States v. Messina , 806 F.3d 55, 9
65 (2d Cir. 2015 ) )

. Whether Kimmons’ rights were violated during sentencing thus largely 10
hinges on whether he had a “fair opportunity to respond” to Ventura’s statement. Id. And there 11
is nothing in the record suggesting that Kimmons did not have such an opportunity. See Joint 12

App’x 83 (stating that the district court would “entertain a motion .

. . to adjourn briefly .

. . to give 13
[Kimmons] an opportunity to respond” to Ventura) ; Joint App’x 114 (indicating after Ventura’s 14
statement that Kimmons was “ready to proceed” to sentencing)

. 15

* * * 16

We have considered Kimmons’ remaining arguments and find them to be without merit. 17
Accordingly, the appeal is DISMISSED

. 18

FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk of Court 20