1 17-3328 (L) United States v. Benton 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Fole y Square, in the City of New York, on the 8 th day of March, two thousand nineteen.
Present: D EBRA A NN L IVINGSTON , G ERARD E. L YNCH , Circuit Judges , M ARGO K. B RODIE , District Judge .*

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 17-3328 (L), 17-3339 (Con)
J EFFREY B ENTON , AKA JT, AKA T ALLMAN , AKA F RESH , Defendant-Appellant

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_____________________________________ 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.2 Durham, United States Attorney for the District of Connecticut, New Haven, CT. Appeal from a judgment of the United Stat es 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 2 1, 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 Be nton (“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 viol ation of 18 U.S.C. § 1962(c); a nd money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i), and impo sing 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 cour t’s restitution order, entered pursuant to the Mandatory Victim Restitution Act (the “MVRA”). We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal.3 Double Jeopardy Claim Benton first argues that the drug conspira cy charge to which he pled guilty is jeopardy-barred as it punishes the same conduc t 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 app eal 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 ex isting at the time of the plea that the presiding judge should ha ve noticed it and reje cted 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 w ith 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 describe d 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 te mporal. When entering his gu ilty plea, Benton was advised that all his pending motions—inc luding his double jeopardy motion—w ould be denied as moot. Benton responded that he understood that his pendi ng motions would be denied as moot and that4 he would not receive a ruling. We thus conclude that “the narrow excepti on 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 cons piracy 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 G overnment 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), wh en 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) pl ea agreement, it must “give the defendant an opportunity to withdraw the pl ea”). 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 leadersh ip 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 a ny 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 operati ng under an identically-worded5 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 hi s sentence on appeal. His first assignment of error—that the agreement was reje cted due to the district cour t’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 senten ce within the binding range “even if the Court imposes such a sentence based on an an alysis 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 rega rding 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 c ourt “effectively” rejected the agreement by sentencing him to a 480-month consecutive se ntence with no credit for time served under his 2012 sentence, or by declining to find the 2012 case “relevant c onduct” 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 ge t 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 questi ons 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 ot her sentence.” Gov’t App’x 107.6 For the above reasons, we conclude that Be nton’s appeal waiver remains enforceable. We therefore decline to entertain his argument th at the district court erred in calculating and imposing his sentence. Restitution Order Lastly, Benton challenges the district cour t’s order of restituti on under the MVRA, which the government concedes he is not barred from c ontesting on appeal. The district court ordered that Benton (jointly and severally with severa l other co-conspirators) pa y 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 mont hly 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 refuse d 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 cons piracy, where a victim’s intentions are not in pari
materia with the defendant, restitu tion should not be denied. See United States v. Ojeikere , 5457 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 ra ther for their funeral expenses.” Gov’t Brief at 65. Even if the a lleged 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 conspi rators.”). We thus uphol d the district court’s decision to order Benton to pay restitution for funeral expenses. Nevertheless, we agree with Benton that th e 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 th e financial resources a nd 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 th e district court recognized when it declined to impose any fine on Benton. Th e district court’s order ma kes payment due upon entry of judgment and also provides that any unpaid amo unt due at Benton’s release from prison “will be paid in installments of no t less than $100, payable on the 1 st of each month.” Gov’t App’x at 319. However, it makes no provision for the mo re 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 cannot8 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 whil e Benton must pay restitution when ever funds become available, clearly “that time is not now,” and thus “the di strict 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 argumen ts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district co urt 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 cons istent with this order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk