1 10-0103-cr United States v. Allen 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 LO CAL 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 28 th day of March, two thousand thirteen.
Present: ROBERT D. SACK, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.

____________________________________________________ United States of America, Appellee , v. No. 10-0103-cr Russell Allen, Defendant – Appellant

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____________________________________________________ FOR APPELLANT: Xavier R. Dona ldson, New York, New York. FOR APPELLEE: Carolyn Pokorny and Susa n Corkery, Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of Ne w York, Brooklyn, New York.

____________________________________________________2 Appeal from a judgment of the United States District Court for the Eastern District of New York (Block, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of th e district court is AFFIRMED. Defendant-Appellant Russell Allen (“Allen”) app eals from the district court’s judgment convicting Allen of one count of racketeering, in violation of 18 U.S.C. § 1961(1), and imposing a sentence of 360 months’ incarceration, five ye ars’ supervised release, restitution of $18,859, and a special assessment of $100. On appeal, Alle n argues that the governm ent violated his plea agreement during sentencing and that his sentence is substantively unreasona ble. We agree with Allen that the government clearly violated th e plea agreement when it advocated for a life sentence, but we affirm the judgment of the distri ct court because we conc lude the error did not affect Allen’s substantial ri ghts and that his sentence to 360 months’ imprisonment was substantively reasonable. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. First, Allen argues that the government breached the terms of his plea agreement and requests that we remand for resenten cing. We review plea agreements de novo , examining “what the parties reasonably u nderstood to be the term s of the agreement.” United States v. Vaval , 404 F.3d 144, 152-53 (2d Cir. 2005) (inter nal quotation marks omitted). We strictly construe the agreement against the government, and, “because plea bargains require defendants to waive fundamental constitutional rights, prosecutors are held to meticulous standards of performance.” Id. When a defendant fails to object to a breac h, however, as occurred here, we review for plain

error. Puckett v. United States , 556 U.S. 129, 133-34, 143 (2009) (hol ding plain error standard of review applied to unpreserve d claim that government breache d plea agreement). That is3 “[t]here must be (1) error, (2) that is plain, and (3) that affects substantia l rights; and if all three of those conditions are met, an appellate cour t may then exercise its discretion to notice a forfeited error, but only if (4) the error seri ously affects the fairne ss, integrity, or public reputation of judicial proceedings.” United States v. Pescatore , 637 F.3d 128, 141 (2d Cir. 2011) (internal quotation marks and alterations omitted). We have no doubt that the government explici tly advocating for a “life sentence,” which fell within the Guidelines range of 360 months to life, was a breach of a term of the plea agreement which provides that the government “will take no position concerning where within the Guidelines range determined by the Court the sentence should fall.” We find it particularly disconcerting that not only did the Assistant Unite d States Attorney breach the plea agreement, both in the language of the government’s sentenci ng memorandum and in its advocacy before the district court at sentencing, but also that the United States At torney’s Office for the Eastern District of New York did not unconditionally ack nowledge this violation of the plea agreement in its briefing to this Court. We hold the error to be harmless because the district court in its wisdom sentenced the defendant at the opposite end of the sentencing range from the one for which the government was advocating, and thus the government’s breach did not affect the defendant’s substantial rights. Nonetheless, we take this oppor tunity to remind the government that we will not tolerate sim ilar breaches in the future. Second, Allen challenges the s ubstantive reasonableness of his sentence of 360 months’ imprisonment. Allen’s plea agreem ent included an appeal waiver that, by its terms, precludes his taking an appeal from the sentence imposed. “I t is by now well established that a knowing and voluntary waiver of the right to a ppeal is generally enforceable.” United States v. Hernandez , 242 F.3d 110, 113 (2d Cir. 2001). There is every indication here that Allen’s waiver was4 knowing and voluntary. That said, it is also clear that a “d efendant may appeal if the Government breaches the terms of the plea agreement.” United States v. Rosa , 123 F.3d 94, 98 (2d Cir. 1997); see also United States v. Gonzalez , 16 F.3d 985, 988-90 (9th Cir. 1993). Even if we review the merits of Allen’s challenge, however , we still affirm the j udgment of the district court because, under our “deferenti al abuse-of-discreti on standard,” the se ntence imposed is substantively reasonable. United States v. Cavera , 550 F.3d 180, 189-91 (2d Cir. 2008) (en banc) (articulating “rea sonableness” review); see also United States v. Verkhoglyad , 516 F.3d 122, 134 (2d Cir. 2008) (noting we are undecided wh ether plain error review applies to an unpreserved substantive ch allenge to a sentence). When there is no procedural e rror, as is the case here with respect to Allen’s sentencing, we will set aside the substantive determination of the district court only in the “proverbial rare case,” such that our review becomes “a backstop for those few cases that, although procedurally correct, would nonetheless damage the administra tion of justice because the sentence imposed was shockingly high, shockingly low, or ot herwise unsupportable as a matter of law.” United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009) (internal quotation marks omitted). “As to substance, we will not substitute our own judgme nt for the district court’s on the question of what is sufficient to meet the § 3553(a) c onsiderations in any particular case.” Cavera , 550 F.3d at 189 (citing United States v. Fernandez , 443 F.3d 19, 27 (2d Cir. 2006)). In Allen’s case, his sentence is neither shockingly high, Rigas , 583 F.3d at 123, nor one for which we would substitute our view for the distri ct court’s considerati on of the § 3553(a) factor s, particularly, as here, when the record shows that the district court carefully weighed and considered the § 3553(a) factors during the sentencing proceeding.5 We have considered all of Allen’s remaining arguments a nd find them to be without merit. The judgment of the district court is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk