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17-3328 (L) 

United States v. Benton

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 TO 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 

8th day of March, two thousand nineteen. 

Present: 

DEBRA ANN LIVINGSTON, 

GERARD E. LYNCH, 

 Circuit Judges, 

 MARGO K. BRODIE, 

 District Judge.* 

_____________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

v. 17-3328 (L), 17-3339 (Con) 

 

JEFFREY BENTON, AKA JT, AKA TALLMAN, AKA 

FRESH, 

 Defendant-Appellant. 

_____________________________________ 

For Defendant-Appellant: John A. Kuchera, Waco, TX. 

For Appellee: Jocelyn Courtney Kaoutzanis, Sandra S. Glover, 

Assistant United States Attorneys, for John H. 

 

*

 Judge Margo K. Brodie, of the United States District Court for the Eastern District of New York, sitting 

by designation. 
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Durham, United States Attorney for the District of 

Connecticut, New Haven, CT. 

Appeal from a judgment of the United States District Court for the District of 

Connecticut (Hall, J.). 

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

DECREED that the district court’s October 16, 2017 judgment of conviction is AFFIRMED. 

We VACATE the district court’s December 21, 2017 order as to restitution and REMAND for 

further proceedings consistent with this order. The Defendant-Appellant’s remaining claim as 

to his sentence is DISMISSED. 

Defendant-Appellant Jeffrey Benton (“Benton”) appeals from the district court’s 

judgment, following a guilty plea pursuant to a written plea agreement under Federal Rule of 

Criminal Procedure 11(c)(1)(C), convicting him of conspiracy to distribute 280 grams or more of 

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; engaging in a 

pattern of racketeering, in violation of 18 U.S.C. § 1962(c); and money laundering, in violation 

of 18 U.S.C. § 1956(a)(1)(A)(i), and imposing a 480-month sentence. Benton’s plea 

agreement, which the district court accepted on October 4, 2017, contains an appeal waiver 

providing in relevant part that “[t]he defendant agrees not to appeal . . . the conviction or 

sentence imposed by the [district court] if that sentence does not exceed 480 months’ 

imprisonment, a five-year term of supervised release, and a fine of $250,000.” Gov’t App’x 

107. In addition, Benton challenges the district court’s restitution order, entered pursuant to the 

Mandatory Victim Restitution Act (the “MVRA”). We assume the parties’ familiarity with the 

underlying facts, the procedural history of the case, and the issues on appeal. 
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Double Jeopardy Claim 

 Benton first argues that the drug conspiracy charge to which he pled guilty is 

jeopardy-barred as it punishes the same conduct to which he previously pled guilty in 2012. 

“[T]he rights afforded by the Double Jeopardy Clause are personal and can be waived by a 

defendant.” United States v. Mortimer, 52 F.3d 429, 435 (2d Cir. 1995). Although a “double 

jeopardy claim may be asserted on appeal notwithstanding the plea of guilty,” United States v. 

Sykes, 697 F.2d 87, 89 (2d Cir. 1983) (citing Menna v. New York, 423 U.S. 61 (1975)), we have 

determined that this exception to the waiver rule applies only “when a double jeopardy claim is 

so apparent either on the face of the indictment or on the record existing at the time of the plea 

that the presiding judge should have noticed it and rejected the defendant’s offer to plead guilty 

to both charges.” United States v. Kurti, 427 F.3d 159, 162 (2d Cir. 2005); see also United 

States v. Broce, 488 U.S. 563, 574-75 (1989). 

 Even assuming arguendo that Benton’s appeal waiver does not foreclose him from 

pressing the instant claim on appeal, we agree with the government that Benton’s case does not 

fall within either of the exceptions to the rule that “a defendant who pleads guilty to two counts 

with facial allegations of distinct offenses concede[s] that he has committed two separate 

crimes.” Broce, 488 U.S. at 570. The indictments are far from facially duplicative: the 

indictment for the 2012 case described Benton as a participant in a heroin conspiracy in New 

Haven, while the more recent indictment described Benton’s part in a conspiracy distributing 

cocaine base and gun-running between Maine and Connecticut. The only overlap between the 

2012 case and the instant case is temporal. When entering his guilty plea, Benton was advised 

that all his pending motions—including his double jeopardy motion—would be denied as moot. 

Benton responded that he understood that his pending motions would be denied as moot and that 
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he would not receive a ruling. We thus conclude that “the narrow exception to the waiver rule 

does not apply in this case” and that the judgment of conviction should be affirmed. Kurti, 427 

F.3d at 162. 

Sentencing Claim 

 If we decline to find that his drug conspiracy charge was jeopardy-barred, Benton 

nevertheless contends that the district court erred at sentencing and that he is entitled to press this 

argument on appeal. The appeal waiver in Benton’s plea agreement, however, squarely 

forecloses this claim. “Waivers of the right to appeal a sentence are presumptively 

enforceable.” United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). Nevertheless, “[s]uch 

waivers may be avoided . . . if the Government breaches the plea agreement,” United States v. 

Garcia, 166 F.3d 519, 521 (2d Cir. 1999), or, in the case of agreements entered into pursuant to 

Federal Rule of Criminal Procedure 11(c)(1)(C), when the district court declines to sentence a 

defendant in conformance with the agreement. See Fed. R. Crim. P. 11(c)(5) (providing that if 

the district court rejects an 11(c)(1)(C) plea agreement, it must “give the defendant an 

opportunity to withdraw the plea”). Neither circumstance is present in this case. 

 Benton first contends that the government breached the plea agreement by responding to 

inquiries by the district court as to whether a leadership enhancement applied to several of his 

predicate offenses. We disagree. The plea agreement explicitly provides that “[i]n the event 

the Probation Office or the Court contemplates any sentencing calculations different from those 

stipulated by the parties, the parties reserve the right to respond to any inquiries and make 

appropriate legal arguments regarding the proposed alternative calculations.” Gov’t App’x 107. 

This case falls squarely within the ambit of our decision in United States v. Riera, which 

reviewed similar behavior by government attorneys operating under an identically-worded 
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provision. 298 F.3d 128, 134 (2d Cir. 2002). As in Riera, the government attorney here made 

no mention of the leadership enhancement until the district court specifically asked for his 

opinion on the enhancement’s applicability, and the plea agreement stipulated to his ability to 

respond to inquiries from the court about differing sentencing calculations. On these facts, we 

identify no breach. 

 We also disagree with Benton’s argument that the district court rejected his agreement 

and thus he should be permitted to challenge his sentence on appeal. His first assignment of 

error—that the agreement was rejected due to the district court’s determination that offense 

levels different from those specified in the agreement should apply—is inconsistent with the 

language of the plea agreement. Benton specifically agreed not to appeal a sentence within the 

binding range “even if the Court imposes such a sentence based on an analysis different from 

that specified” in the agreement itself. Gov’t App’x 107. The district court’s sentence was 

within the agreed-upon range, and thus its different analysis regarding his adjusted offense level 

does not constitute a rejection of the agreement. Similarly, the language of the plea agreement 

belies Benton’s arguments that the district court “effectively” rejected the agreement by 

sentencing him to a 480-month consecutive sentence with no credit for time served under his 

2012 sentence, or by declining to find the 2012 case “relevant conduct” at sentencing. Given 

that Benton reserved his right to argue that his new sentence should be imposed concurrently 

with his 2012 sentence and that he should get credit for time served, while the government 

agreed to abide by the district court’s decision, clearly the parties understood that the district 

court had discretion to decide those questions either way. Benton specifically agreed, 

moreover, “not to appeal . . . the [district court’s] imposition of a sentence of imprisonment 

concurrently or consecutively, in whole or in part, with any other sentence.” Gov’t App’x 107. 
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 For the above reasons, we conclude that Benton’s appeal waiver remains enforceable. 

We therefore decline to entertain his argument that the district court erred in calculating and 

imposing his sentence. 

Restitution Order 

 Lastly, Benton challenges the district court’s order of restitution under the MVRA, which 

the government concedes he is not barred from contesting on appeal. The district court ordered 

that Benton (jointly and severally with several other co-conspirators) pay restitution for funeral 

expenses for several individuals, and provided that if these expenses were not paid by the time 

Benton left prison, they would be due in monthly increments of at least $100. Benton argues 

that we cannot approve the district court’s order, as it “has the effect of treating coconspirators as 

‘victims,’ and thereby requires ‘restitutionary’ payments to the perpetrators of the offense of 

conviction.” United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006). Benton also contests 

the provision of the order that made the restitution “due and payable immediately,” even though 

he has no assets. 

 “[W]e review a district court’s order of restitution under the MVRA for abuse of 

discretion.” United States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012). However, “[w]e review 

de novo the district court’s conclusion that a person is a victim for purposes of the restitution 

statutes.” United States v. Lazarenko, 624 F.3d 1247, 1249 (2d Cir. 2010). 

 While Benton is correct that we have refused to enter restitution to alleged victims who 

were also co-conspirators in the crime of conviction, see e.g. United States v. Lazarenko, 624 

F.3d 1247, 1252 (2d Cir. 2010), that prohibition does not apply here. While a victim may be a 

co-conspirator as to some parts of the conspiracy, where a victim’s intentions are not in pari 

materia with the defendant, restitution should not be denied. See United States v. Ojeikere, 545 
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F.3d 220, 223 (2d Cir. 2008). As the government rightly observed, “[r]estitution was not 

awarded for [the individuals’] drug dealing or gang membership, but rather for their funeral 

expenses.” Gov’t Brief at 65. Even if the alleged victims engaged in criminal activity with 

Benton and his gang, that did not make them co-conspirators in the offense of their own murders. 

See Ojeikere, 545 F.3d at 222-23 (“Whatever illegal scheme the victims thought they were 

involved in, it was not a scheme to lose their own money . . . .”); see also United States v. Sanga, 

967 F.2d 1332, 1335 (9th Cir. 1992) (“Any criminal complicity in the conspiracy which [the 

victim] might bear stopped at the point at which she became the object of, rather than a 

participant in the criminal goals of the conspirators.”). We thus uphold the district court’s 

decision to order Benton to pay restitution for funeral expenses. 

 Nevertheless, we agree with Benton that the district court erred in ordering restitution 

“due and payable immediately,” with no schedule in contemplation of his inability to pay. The 

MVRA requires that once the court has determined the amount of restitution, the restitution order 

should provide a schedule “in consideration of the financial resources and other assets of the 

defendant.” 18 U.S.C. § 3664(f)(2)(A). According to his pre-sentence report, Benton has no 

reported assets and no ability to pay a fine, a fact the district court recognized when it declined to 

impose any fine on Benton. The district court’s order makes payment due upon entry of 

judgment and also provides that any unpaid amount due at Benton’s release from prison “will be 

paid in installments of not less than $100, payable on the 1st of each month.” Gov’t App’x at 

319. However, it makes no provision for the more than forty years that Benton has been 

sentenced to prison, other than noting that the Bureau of Prisons may implement a restitution 

schedule in accordance with its Inmate Financial Responsibility Program. In United States v. 

Kinlock, we vacated a similar order of restitution on the grounds that “[w]hen restitution cannot 
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be paid immediately, the sentencing court must set a schedule of payments for the terms of 

incarceration, supervised release, or probation.” 174 F.3d 297, 301 (2d Cir. 1999). As in 

Kinlock, we recognize that while Benton must pay restitution whenever funds become available, 

clearly “that time is not now,” and thus “the district court should develop a reasonable payment 

scheme for his term of incarceration as well as supervised release.” Id. (emphasis added). 

We have considered Benton’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court as to Benton’s conviction, and 

DISMISS Benton’s claims as to his prison sentence. We VACATE the district court’s 

restitution order and REMAND for further proceedings consistent with this order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk