11-5468-cr

United States v. Doe

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 Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 18th day of October, two thousand twelve.

PRESENT: DENNY CHIN,

 RAYMOND J. LOHIER, JR.,

CHRISTOPHER F. DRONEY,

Circuit Judges.

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UNITED STATES OF AMERICA, 

Appellee,

 -v.- 11-5468-cr

JOHN DOE, 

Defendant-Appellant.

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FOR APPELLEE: Andrea L. Surratt, Brent S. Wible,

Assistant United States Attorneys,

for Preet Bharara, United States

Attorney for the Southern District

of New York, New York, New York.

FOR DEFENDANT-APPELLANT: Adam D. Perlmutter, Law Offices of

Adam D. Perlmutter, P.C., New York,

New York.

Appeal from a judgment of the United States District

Court for the Southern District of New York (Scheindlin, J.).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the case is REMANDED to the district court for

further consideration of the sentence and, if the district court

determines it to be necessary, for resentencing.

Defendant-appellant John Doe appeals from the district

court's judgment of conviction entered on July 21, 2011. Doe

pled guilty, pursuant to a cooperation agreement, to: 

(1) conspiracy to distribute cocaine, heroin, and marijuana;

(2) possession with intent to distribute oxycodone; (3) extortion

under color of official right; (4) loansharking; and (5) misuse

of a passport, in violation of 21 U.S.C. §§ 812, 841(a)(1),

841(b)(1)(C), 846, and 18 U.S.C. §§ 894, 1544, 1951(a). He was

sentenced principally to 60 months' imprisonment. We assume the

parties' familiarity with the underlying facts, the procedural

history of the case, and the issues presented for review.

On appeal, Doe argues that the district court erred in

increasing his offense level based on disclosures he made

pursuant to a cooperation agreement with the government. Because

Doe concedes that he did not object to his offense level

calculation, we review his claim for plain error. See Fed. R.

Crim. P. 52(b); Puckett v. United States, 556 U.S. 129, 134-35

(2009). An appellate court may, in its discretion, correct an

error not raised before the district court when, inter alia, the

error is plain and it affects substantial rights. Puckett, 556

U.S. at 135.
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Here, we conclude that no error was committed. Plea

agreements are interpreted according to principles of contract

law. See United States v. Woltmann, 610 F.3d 37, 39 (2d Cir.

2010). Doe's plea agreement provided:

[The U.S. Attorney's] Office will inform the

Probation Department [("Probation")] and the

[district court] of (a) this Agreement; (b)

the nature and extent of [Doe's] activities

with respect to this case and all other

activities of [Doe] which this Office deems

relevant to sentencing. . . . In so doing,

this Office may use any information it deems

relevant, including information provided by

[Doe] both prior to and subsequent to the

signing of this Agreement. 

(A. 16 (emphasis added)). The agreement thus expressly stated

that, for the purposes of sentencing, the government could inform

Probation and the district court of Doe's activities through

information provided by Doe himself. Section 1B1.8 of the

Sentencing Guidelines, which permits the government to agree to

disregard admissions offered by a defendant in the course of

cooperation, is thus inapplicable here. See U.S.S.G. § 1B1.8(a)

("Where a defendant agrees to cooperate with the government by

providing information concerning unlawful activities of others,

and as part of that cooperation agreement the government agrees

that self-incriminating information provided pursuant to the

agreement will not be used against the defendant, then such

information shall not be used in determining the applicable

guideline range, except to the extent provided in the

agreement."). Instead of agreeing to disregard such admissions,

here the government specifically retained the right to bring

Doe's admissions to the attention of the court.
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As the government acknowledges on appeal, however, the

district court made a mathematical error in its guidelines

calculation. Adopting the quantity determination in the

presentence report, to which neither side objected below, the

district court determined that the drugs involved in Doe's

offenses were equivalent to 11,074 kilograms of marijuana when

the equivalent quantity was actually 9,074 kilograms of

marijuana. Hence, Doe's sentencing range should have been 108 to

135 months' imprisonment rather than 135 to 168 months. As we

cannot be sure whether the district court would have imposed the

same sentence of 60 months' imprisonment had it started from the

correct guidelines range, we remand to the district court for

further consideration of Doe's sentence and to determine whether,

in light of the corrected range, resentencing is necessary. See

United States v. Ahders, 622 F.3d 115, 123 (2d Cir. 2010) (per

curiam).

We have considered Doe's remaining arguments and find

them to be without merit. Accordingly, we hereby REMAND to the

district court for further consideration of the sentence in light

of the mathematical error referenced above, and, if the district

court determines it to be necessary, for resentencing. 

In the interest of judicial economy, this panel will

retain jurisdiction over any subsequent appeal; either party may

notify the Clerk of a renewed appeal within fourteen days of the

district court's decision. See United States v. Jacobson, 15

F.3d 19, 22 (2d Cir. 1994).

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, CLERK