12-1822-cr

United States v. Miri

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 APPELLAT E 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 27th day of June, two thousand thirteen.

PRESENT: CHESTER J. STRAUB,

PETER W. HALL,

DENNY CHIN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

-v- 12-1822-cr

VICTOR MIRI,

Defendant-Appellant.

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FOR APPELLEE: Jason Cowley, Assistant United 

States Attorney, for Preet 

Bharara, United States Attorney 

for the Southern District of New 

York, New York, New York.
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FOR DEFENDANT-APPELLANT: Robert J. Boyle, Law Office of 

Robert J. Boyle, New York, New 

York.

Appeal from the United States District Court for the 

Southern District of New York (McMahon, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND 

DECREED that the appeal is DISMISSED or, alternatively, the 

judgment is AFFIRMED.

Defendant-appellant Victor Miri pled guilty, pursuant 

to a plea agreement, to possession of a firearm after having 

been previously convicted of a felony, in violation of 18 U.S.C. 

§ 922(g)(1). The plea agreement included a waiver of his right 

to appeal or otherwise challenge "any sentence within or below 

. . . 87 to 108 months' imprisonment." The district court 

(McMahon, J.) principally sentenced Miri to 108 months' 

imprisonment. Miri appeals, challenging the substantive 

reasonableness of his sentence. 

As a preliminary matter, we conclude that Miri's 

appellate waiver is enforceable. Miri asserts that we should 

not enforce the appellate waiver in the plea agreement because 

the magistrate court (Gorenstein, M.J.) wrongly informed him 

during the plea allocution that "if you get a sentence of 87 

months or less you are giving up your right to challenge that 

sentence." Plea Tr. 9:25-10:2 (Sept. 6, 2011) (emphasis added).
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Hence, although Miri received a sentence covered by the 

appellate waiver in the plea agreement, he asserts that the 

magistrate court's misinformation rendered that waiver unknowing 

and involuntary. 

It is apparent that the magistrate judge misspoke when 

he informed Miri of the terms of his appellate waiver.1 See Fed.

R. Crim. P. 11(b)(1)(N) (requiring court to inform defendant of 

"the terms of any plea-agreement provision waiving the right to 

appeal or to collaterally attack the sentence"). Nevertheless, 

"it is well-settled that a defendant's knowing and voluntary 

waiver of his right to appeal a sentence within an agreed upon 

guideline range is enforceable." United States v. Lee, 523 F.3d 

104, 106 (2d Cir. 2008) (omission and quotation marks omitted). 

Furthermore, "a judge's remark at sentencing . . . does not 

affect a waiver that is clear and fully enforceable when 

entered." United States v. Roitman, 245 F.3d 124, 126 (2d Cir. 

2001). 

We have before us several indicia of the knowing and 

voluntary nature of Miri's waiver: (1) his signature on the 

written plea agreement; (2) his statements at the plea 

allocution; (3) a letter to the district court from the 

 

1 The district court, moreover, may have compounded the confusion 

by initially indicating during a hearing that it would adhere to the 

appellate waiver as stated on the record by the magistrate court. 
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government after the error was made, which confirmed that Miri 

and his lawyer "understand and agree to the appellate waiver as 

described in the plea agreement" and would so clarify on the 

record; and (4) Miri's statements at sentencing. Moreover, when 

the error was discussed before the district court, Miri never 

sought to withdraw his plea or otherwise challenged the extent 

of the appellate waiver as described in the plea agreement. 

Based on the foregoing, notwithstanding the magistrate 

court's erroneous description of the appellate waiver, Miri 

understood that the plea agreement waived his right to appeal a 

sentence of 108 months' imprisonment or less. See id. (Rule 11 

error did not undermine clear waiver where error did not affect 

defendant's understanding of waiver). Thus, reviewing the 

record as a whole, we conclude that Miri's knowing and voluntary 

waiver is enforceable and that we lack jurisdiction to hear this 

appeal. See United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 

2010); see also United States v. Dominguez Benitez, 542 U.S. 74, 

80 (2004) (courts "must look to the entire record" to assess

effect of Rule 11 error).

Even if, however, we were to reach the merits of 

Miri's appeal, his arguments challenging the substantive 

reasonableness of his sentence would fail. We review the length 

of a sentence for reasonableness, United States v. Chu, 714 F.3d 
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742, 746 (2d Cir. 2013) (per curiam), "tak[ing] into account the 

totality of the circumstances, giving due deference to the 

sentencing judge's exercise of discretion, and bearing in mind 

the institutional advantages of district courts," United States 

v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Miri was 

sentenced on a single count of felony possession but, as the 

district court described, the offense involved possession of "1, 

2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 firearms and more than 5,000 

rounds of ammunition of various makes and calibers." Sentencing 

Tr. 8:5-6 (Mar. 29, 2012). Moreover, the district court was 

openly -- and understandably -- skeptical of Miri's claim that 

he was merely a collector of guns, particularly as guns were 

found hidden underneath the mattress of his bed, in a bedroom 

closet, and in a kitchen drawer; five of the guns were found 

loaded; and the police also recovered fake silencers and night 

vision goggles from his home. 

While acknowledging certain mitigating circumstances, 

the district court then found the 108-month sentence would 

appropriately "punish this case, this conduct, your conduct." 

Upon reviewing the record, even assuming Miri did not waive his 

right to appeal, we conclude that the sentence imposed was not 

"shockingly high . . . or otherwise unsupportable as a matter of 

law." United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). 
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We have considered Miri's remaining arguments and 

conclude they are without merit. For the foregoing reasons, we 

DISMISS the appeal or, alternatively, we AFFIRM the judgment of 

the district court.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk