1 19

- 3433 United States v. Rivera

- Santiago 

### 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 NO TATION “ 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 9 th day of November , two thousand twenty

. P resent : D EBRA A NN L IVINGSTON , Chief Judge B ARRINGTON D. P ARKER , G ERARD E. L YNCH , Circuit Judges ,

_____________________________________ U NITED S T ATES OF A MERICA , Appellee ,

v. 19

- 3433
A LEXANDER R IVERA

- S ANTIAGO , Defendant

- Appellant

.

_____________________________________ For Defendant

- Appellant : C LINTON W. C ALHOUN III, Calhoun & Lawrence, LLP, White Plains, N ew York
F or Plaintiff : M ONICA J. R ICHARDS , Assistant United States Attorney, on behalf of James P. Kennedy, Jr., United States Attorney, Buffalo, N ew York2 Appeal from a judgment of the United States District Court for the Western District of New York ( Vilardo , J .)

. UPON DUE CONSIDERATION , IT IS HEREBY ORD ERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant

- Appellant Alexander Rivera

- Santiago appeals from a judgment of the United States District Court for the Western District of New York (Vilardo, J. ) , entered on October 16, 2019, following Rivera

- Santiago’s admission to a violation of sup ervised re lease and his sentencing for that violation to a 21

- month term of imprisonment. At the time of his federal sentencing, Rivera

- Santiago had pled guilty to a charge of possessing a firearm in violation of New York Penal Law § 265.03(3) and was awaiting sen tencing in state court

. The district court sentenced Rivera

- Santiago to a 21

- month term of imprisonment to run consecutive ly to the anticipated, but not yet imposed, state term of imprisonment. On appeal, Rivera

- Santiago asserts that the district court erred in ordering that the 21

- month sentence be served consecutively to an anticipated, but not yet imposed, sentence. We ass ume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 1. Appeal Waiver At the start, t he government asserts that Rivera

- Santiago’s appeal is foreclosed by an appeal waiver included in the terms o f his plea agreement. We disagree. The Court will enforce an appeal waiver “if the record ‘clearly demonstrates’ that the waiver was both knowing (in the sense that the defendant fully understood the potential consequences of his waiver) and voluntary.” United States v. Coston , 737 F.3d 235, 237 (2d Cir. 2013) (quoting United States v. Ready , 82 F.3d 551, 557 (2d Cir. 1996)). Even w hen an appeal waiver is entered into knowingly and voluntarily, however, the Court looks to the text of the plea agreement to determine whether the waiver3 encompasses the issue on appeal, and in doing so “construe[s] waiver of a right to appeal in a plea agreement narrowly.” United States v. Stearns , 47 9 F.3d 175, 178 (2d Cir. 2007). Here, Rivera

- Santiago ’s plea agreement do es not encompass the issue he presses on appeal

. T h e appeal waiver that Rivera

- Santiago signed only “explicitly waived his right to appeal the length of his sentence,” id

. , and not his right to appeal the decision to impose a consecutive sentence. The ap peal waiver states , T he Defendant agrees that [he] will not appeal a sentence of imprisonment by the Court which falls within or less than the sentencing range for imprisonment set forth by the Court which falls within or less than the sentencing range for imprisonment set forth in Section II, [Paragraph] 6 above, notwithstanding the manner in which the Court determines the sentence. App’x at 31. Section II, Paragraph 6 sets forth that the Guidelines range for a Grade B violation is 18 to 24 months impr isonment . The appeal waiver does not address whether the sentence will be imposed concurrently with or consecutively to another existing or anticipated sentence. And
t his Circuit has routinely held that an appeal waiver that waives the right to appeal only the length of a sentence does not also thereby waive the right to appeal a decision to impose the sentence consecutively or concurrently

. See Stearns , 47 9 F.3d at 178 (“Our case law makes clear that, although [the defendan t] explicitly waived his right to appeal the length of the sentence, he did not waive the right to appeal the decision to impose that sentence partially concurrently with his state sentence.”); United States v. Williams , 260 F.3d 160, 164

– 65 (2d Cir. 2001) (“[A]lthough [the defendant] waived his right to appeal the length of the stipulated sentence, he did not waive a claim on appeal that the sentence should have been imposed concurrently with his state sentence.”); see also United States v. Brown , 232 F.3d 44, 48 (2d Cir. 2000); United States v. Velasquez , 136 F.3d 921, 923 n.1 (2d Cir. 1998); United States v. Ritter , 700 F. App’x 10, 13 (2d Cir. 2017).4 Therefore , Rivera

- Santiago’s appeal waiver does not bar appeal on the question here and, accordingly, we address its merits. 2. The Merits
R ivera

- Santiago asserts that the district court erred in imposing his sentence for violating the terms of his supervised release consecutive ly to his anticipated state sentence because the court “failed to follow the direct ion of U.S.S.G. § 7B1.3(f),” Appellant Br. at 10. 1 Section 7B1.3(f) of the Sentencing Guidelines is a policy statement that provides : Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. Rivera

- Santiago argues that this Guidelines provision means that a court may impose a consecutive sentence in the context of a revocation of supervised release only if the defendant is already serving the un discharged term of imprisonment that is to precede the consecutive sentence. Because the district court here determined that his federal sentence should run consecutive ly to an expected
state sentence, according to Rivera

- Santiago, the district court failed to take Section 7B1.3(f) into
account

. This argum ent is without merit. As an initial matter, policy statements set forth in Chapter Seven of the Sentencing Guidelines are not binding on the court. United States v. Anderson , 15 F.3d 278, 284 (2d Cir. 1994); United States v. Goins , 630 Fed. App’x 64, 67 (2d Cir. 2015) (“[A]s

1 The Government urges that this claim may be reviewed only for plain error, on the theory that Rivera

- Santiago did not object to the consecutive sentence when imposed. We need not address this question because we conclude, for the reasons stated herein, t hat Rivera

- Santiago’s argument fails whether reviewed for plain error or for clear error under an “abuse of discretion” standard , s ee United States v. Olmeda , 894 F.3d 89, 92 (2d Cir. 2018).5 a policy statement, [U.S.S.G § 7B1.3(f)]’s application has always been discretionary and not mandatory.”). While a district court must “consider the [applicable] non

- binding policy statements found in Chapter Seven of the Guidelines Manual,” the policy statements are “merely advisory.” United States v. Pelensky , 129 F.3d 63, 69 (2d Cir. 1997). And in considering non binding policy statements, a district court does not have to make “explici t, detailed findings” if it choo se s not to f ollow a policy statement

. Id. (quoting Anderson , 15 F.3d at 284 ); see also United States v. Fleming , 397 F.3d 95, 99

– 100 (2d Cir. 2005).
But here, t here is no applicable policy statement at issue in any event. Section 7B1.3(f) requires a court to impose a consecutive term when the re is an existing sentence in effect . It does not address the court’s discretion in the absence of any such existing sentence. B ecause U.S.S.G. § 7B1.3(f) was inapplicable by its terms, the district court had no obligati on to consider it in determining Rivera

- Santiago’s sentence. At any rate , the district court did consider Section 7B1.3(f). The district court explicitly stated that “[t]he Court has considered the policy statements from Chapter 7 of the sentencing guide lines as well as the factors in 18 United States Code Section 3583E.” App’x at 57. Having done so, the court stated that the sentence “will be served consecutive to any term of imprisonment imposed on the state charges.” App’x at 57. In elaborating on the sentence, the court remarked that “prior sentences that have been imposed [on Rivera

- Santiago] have just not worked,” App’x at 59, and as such, the court chose to “impose[] a sentence in the middle of the guidelines” and “not at the high end,” “because I understand this is going to be consecutive to [the state sentence ] .” Id. Thus, to the extent the court considered this policy statement , it still decided that a consecutive sentence was warranted, even if not required or ex pressly authorized by Chapte r 7.6 Since Chapter 7 is non

- binding on the courts, such a decision was both reasonable and appropriate. See Pelensky , 129 F.3d at 69. Moreover, t he Supreme Court has expressly upheld the district court’s authority to impose a federal sentence “consecut ive to an anticipated state sentence that has not yet been imposed.” Setser v. United States , 566 U.S. 231, 233 (2012). Rivera

- Santiago tries to di stinguish his case from the Court’s holding in Setser , stating that “Setser’s case did not involve a violat ion proceeding, but rather involved the sentencing of a defendant on a federal drug conviction. . . . Thus, if Rivera were being sentenced for a crime instead of a violation of supervised release, the sentence he received would be controlled by Setser and would be unobjectionable.” Appellant ’ s Br. at 13. But t he Court’s holding in Setser was based on a recognition of courts’ longstanding discretion to impose a sentence to “run concurrently or consecutively with respect to other sentences . . . including s tate proceedings ” and to abide by “principles of federalism.” 2 566 U.S.
at 236

– 37, 241. That the defendant was “sentenced for a crime instead of a violation of supervised release” had no bearing on the Court’s decision in Setser

. It is not surprising, then, that the court s to have considered Rivera

- Santiago’s argument ha ve uniformly rejected it

. S ee

2 Contrary to Rivera

- Santiago’s argument, Setser arguably has gre ater force in the context of violations of supervised release, where courts have always had ample sentencing discretion absent binding sentencing guidelines for violations of supervised release, Pelensky , 129 F.3d at 69, and where federalism concerns are h eightened when, as here, the violation of supervised release was due to the commission of a state crime. See Setser , 566 U.S. at 241 (“[I]t is always more respectful of the State’s sovereignty for the district court to make its decision up front rather th an for the Bureau of Prisons to make the decision after the state court has acted. That way, the state court has all of the information before it when it acts.” (emphasis in original)). Although the Setser Court noted that there may be instances in which “a district court may have inadequate information and may forbear” from “impos[ing] anticipatory consecutive (or concurrent) sentences,” id. at 242 n.6, such was not the case here as Rivera

- Santiago’s counse l informed the court that the state court had “committed to a seven

- year sentence in which he’ll also receive a five

- year post

- supervised release term.” App’x at 55.7 United States v. Johnson , 827 F.3d 740, 745 (8th Cir. 2016) (“[T]he district court’s order that Johnson serve the federal revocation sentence consecutive to a state sentence that has not yet been imposed constitutes no abuse of discretion.”); Uni ted States v. Long , 2012 WL 2905304, at *2 (C.D. Ill. July 16, 2012) (“[T]he Court concludes, in light of Setser , that it has the authority to make the sentence imposed run consecutive to a state sentence that has not yet been imposed.”)

. We agree

.

* * * We have considered Defendant

- Appellant ’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk