17-508-cr

U.S. v. Smith

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 ELECTRON IC 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2
25 th day of April, two thousand eighteen. 3

4 Present: ROSEMARY S. POOLER, 5 REENA RAGGI, 6 CHRISTOPHER F. DRONEY, 7 Circuit Judges

. 8

_____________________________________________________ 9

10 UNITED STATES OF AMERICA, 11

12 Appellee

, 13

14
v. 17-508-cr 15

16 JASON M. SMITH, 17

18 Defendant-Appellant

. 19

_____________________________________________________ 20

21 Appearing for Appellant: Stephani e M. Carvlin, New York, N.Y. 22

23 Appearing for Appellee: Tiffany H. Lee, A ssistant United States Attorney (Joseph J. 24 Karaszewski, on the brief ), for James P. Kennedy, Jr., Acting 25 United States Attorney for the Western District of New York, 26 Buffalo, N.Y. 27

28 Appeal from the United States District Court for the Western District of New York (Skretny, J. ). 29

302 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 1
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

. 2

3 Defendant-Appellant Jason M. Smith appeal s from the February 7, 2017 judgment of the 4
United States District Co urt for the Western District of New York (Skretny, J. ), convicting him, 5 following a guilty plea, of two counts of sexua l exploitation of children for purposes of 6 producing child pornography, and sentencing him prin cipally to 480 months’ imprisonment. We 7 assume the parties’ familiarity with the underlying facts, procedural history, and specification of 8
issues for review. 9

10 First, Smith contends that the appellat e waiver provision in his plea agreement was 11 invalid. “Waivers of the right to appeal a sentence are presumptively enforceable.” United States 12
v. Arevalo , 628 F.3d 93, 98 (2d Cir. 2010) (citing United States v. Gomez-Perez , 215 F.3d 315, 13 319 (2d Cir. 2000)). However, “[w]e will enforce a defendant’s waiver of the right to appeal a 14 sentence only if the record clearly demonstrates that the waiver was both knowing (in the sense 15 that the defendant fully unders tood the potential consequences of his waiver) and voluntary.” 16
United States v. Coston , 737 F.3d 235, 237 (2d Cir. 2013) (quoting United States v. Ready , 82 17 F.3d 551, 557 (2d Cir. 1996)) (internal punctuation omitted). A defendant’s waiver of appellate 18 rights is considered knowing and voluntary if th e defendant “fully understood the consequences 19 of the waiver” and the decision was not “the pr oduct of actual or threatened physical harm, 20 mental coercion overbearing the defe ndant’s will, or the defendant’s sheer inability to weigh his 21 options rationally.” United States v. Roque , 421 F.3d 118, 122 (2d Cir. 2005) (quoting Miller v. 22 Angliker , 848 F.2d 1312, 1320 (2d Cir. 1988)). 23

24 Fed. R. Crim. P. 11(b)(1)(N) requires th e court to “inform the defendant of, and 25
determine that the defendant understands...the terms of any plea-agreement provision waiving 26 the right to appeal or to collatera lly attack the sentence.” “Rule 11 is designed to assist district 27 courts in ensuring that a defendant’s guilty plea is knowing and voluntary.” United States v. 28
Cook , 722 F.3d 477, 481 (2d Cir. 2013) (quoting United States v. Mercado , 349 F.3d 708, 711 29 (2d Cir. 2003)) (emphasis in origin al). Where, as here, the defenda nt attacks an appellate waiver 30 by claiming that Rule 11 was violated, but this Rule 11 error was not preserved, plain error 31 review applies, which “requires a defendant to demonstrate that (1 ) there was error, (2) the error 32 was plain, (3) the error pr ejudicially affected his substantial rights, and (4) the error seriously 33 affected the fairness, integrity or public reputation of judicial proceedings.” Id. 34

35 On the record before us, we conclude th at the waiver provision barring Smith from 36 appealing any sentence below 720 months was knowing and voluntary, and that Smith’s plea 37 proceedings were compliant with Rule 11. 38

39 Smith primarily attacks the waiver as simp ly too confusing. The waiver provided that 40 Smith would forfeit his appellate rights if the district court im posed a sentence at or below 720 41 months. The waiver provision itself did not say that 720 months would trigger the waiver; rather, 42 it referred to a separate, numbered paragraph in the plea agreement. Located on separate page, 43 the referenced paragraph provided for a Guide lines range of 720 months, which would result 44 from the imposition of a particular enhancement. 45

463 Incorporation by reference is perhaps less clear than simp ly providing all the relevant 1 information in a single paragraph, but we hard ly think this rendered the appellate waiver 2 provision incomprehensible to Smith. The amount of time that would trigger the appellate waiver 3 was only a half-step away: Smith needed only to consult the specified paragraph to find the 4 applicable number of months that would for eclose his appellate rights. Smith was a college 5 graduate and confirmed to the district court th at he did not have any difficulty understanding the 6 documents related to his plea. Plainly, it seems to us that the clearly delineated, internal reference 7 was a straightforward means of la ying out the terms of the appella te waiver, which indicates that 8 Smith knowingly and voluntarily wa ived his appellate rights. 9

10 Smith also argues that his plea hearing was deficient because the district court did not 11
elicit an affirmation that Smith understood that he would forfeit his appellat e rights if he received 12 a sentence of 720 months or less. Rather, the di strict court confirmed with Smith that he 13 understood that (i) the district court would ultimat ely determine the applicab le Guidelines range, 14 (ii) the Guidelines range would potentially be 720 months, and (iii ) if the district court imposed 15 “a guidelines sentence or less, you give up your right to appeal.” App’x at 196. Smith’s 16
affirmations that he understood th ese points, and that he had revi ewed his plea agreement with 17 his attorney, tend to show that Smith was aware that the district court might impose a sentence of 18 720 months, and that he would not be able to appeal any sentence at or below that amount. See 19
Cook , 722 F.3d at 481 (district court’s failure to advise defendant at plea hearing of “the ‘heart’ 20 of the appeal waiver,” which w ould apply to a sentence of 60 months or less, did not cast doubt 21 on the knowing and voluntary nature of the appell ate waiver, or demonstrate Rule 11 error). And 22
if there was Rule 11 erro r here, it is not plain. See United States v. Botti , 711 F.3d 299, 310 (2d 23 Cir. 2013) (“Error is plain if it is clear or obvious.”). 24

25 Since we conclude that Smith’s appellate waiver is valid and enforceable, it bars his 26 substantive reasonableness challenge. 27

28 Smith also argues that he received ineff ective assistance of counsel on his suppression 29 motion. We are “generally disincli ned to resolve ineff ective assistance claims on direct review,” 30
United States v. Gaskin , 364 F.3d 438, 467 (2d Cir. 2004), and we decline to depart from our 31 usual practice here. Such claims are better suited for review in the first instance through a habeas 32 petition to the district court, whic h is “the forum best suited to developing the facts necessary to 33 determining the adequacy of representation.” Massaro v. United States , 538 U.S. 500, 505 34 (2003). 35

36
We have considered the remainder of Smith ’s arguments and find them to be without 37 merit. Accordingly, the order of the district court hereby is AFFIRMED. 38

39

40
FOR THE COURT: 41 Catherine O’Hagan Wolfe, Clerk 42

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