1 17-3696-cr

United States v. Parrish



### 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 PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION

A 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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 13 th day of November, two thousand eighteen.

PRESENT: J OHN M. W ALKER

, J R

., P IERRE N. L EVAL

, C HRISTOPHER F. D RONEY

, Circuit Judges

.

___________________ __________________

U NITED S TATES OF A MERICA

,

Appellee

,

v. 17-3696-cr

L AQUAN P ARRISH

, AKA M AD D OG

, AKA Q UANZAS

,

Defendant-Appellant

. *

___________________ __________________

FOR APPELLEE: H AGAN S COTTEN

, Assistant United States Attorney, (Karl Metzner, Assistant United States Attorney, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY

* The Clerk of the Court is respectfully dir ect to amend the caption as shown above.2 FOR DEFENDANT-APPELLANT: N ATHANIEL Z. M ARMUR

, T HE L AW O FFICES OF N ATHANIEL Z. M ARMUR

, PLLC, New York, NY

Appeal from a criminal judgment entered on October 27, 2017, by the United States

District Court for the Southern District of New York (Kaplan, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED

.

Parrish appeals from an October 27, 2017, judgment of conviction entered in the

United States District Court for the Southern District of New York, sentencing him to 195 months’ imprisonment. Specifically, he cl aims the government breached his plea agreement by requesting a 211 m onth sentence and, as a result, he is not bound by the appeals waiver in that agr eement. A summary of the plea agreement and the proceeding

before the district court are included to explain our decision, but we otherwise assume the parties’ familiarity with the f acts and record of prior proceedings. For the reasons stated below, we affirm the district court’s judgment.

I. Background

Parrish pleaded guilty on Ja nuary 30, 2017, to conspira cy to commit racketeering under 18 U.S.C. § 1962(d), and use of a firear m in the course of th e conspiracy under 18 U.S.C. § 924(c)(1)(A)(i), pur suant to a plea agreement. In addition to including a “Stipulated Guidelines Range” of 181 to 211 months’ impris onment and an appeals waiver if Parrish received a sentence of imprisonment of 211 months or less, the agreement also contained a “Downward Departure Provision,” representing the parties’ agreement “that . . . the defendant may seek, and the Governme nt will not object to, a downward departure from the Stipulated Guid elines Range . . . on the ground th at” a prior New York state assault conviction (for which Parrish served 31 months’ imprisonm ent) “constitutes relevant conduct to, and is part of, th e offense charged in Count One. ” App’x at 29, 110. The plea agreement also included the fo llowing provisions: (1) “[E]ither party may seek a sentence outside of the Stipulated Guidelines Range based upon the factors to be considered in imposing a sentence pursuant to Title 18, United States Code, Section 3553(a),” App’x at 29; and (2) the parties are free “to make any arguments regarding where within the Stipulated Guidelines Range” Parrish’s sent ence should be. App’x at 29-31. During his plea colloquy, Parrish conf irmed he understood the terms of his agreement.

The presentence report (“PSR”) of the United States Probation Office, prepared following Parrish’s guilty plea, calculated a higher guidelines range —211 to 248 months’ imprisonment—than the parties set forth in their plea agre ement. In his subsequent sentencing memorandum, Parrish maintained th at the Stipulated Guidelines Range was appropriate, objecting to the high er guidelines calculation in th e PSR. He also argued for3 the departure set forth in th e Downward Departure Provision of the plea agreement, noting that the awarding of the (31 month) downwa rd departure by the court would yield a new guidelines range of 150-180 months’ imprisonm ent, and advocated fo r a sentence below 150 months. The government, in its memora ndum, sought a sentence of 211 months, relying on an upward variance based on the 18 U.S.C. § 3553(a ) factors, and not because it objected to a downward departure under the Downward Departure Provision or disputed any other provision of the plea agreemen t. The government also argued in its

memorandum: “To the extent the Court is inclined to give Parrish cred it for time spent in jail on relevant conduct . . . the Government asks that the Court impose a sentence of 211 months imprisonment after such credit is given, so that Parrish’s actual sentence is 211 months.” App’x at 91 (emphasis in the original).

At a sentencing hearing held on October 11, 2017, the governmen t again stated that it was “certainly . . . not seeking to” argue ag ainst the ground for th e Downward Departure Provision and it did “not object to the Court giving credit for that.” App’x at 108–09. The district court later confirmed the governm ent’s position, asking counsel: “And the government’s position on the departure is no objection, right?” to which the government responded, “Correct.” App’x at 117. Nevertheless, the government reaffirmed its argument

that a sentence of 211 months’ imprisonment was appropriate.

The district court, in imposing Parrish ’s sentence, determined the applicable guidelines range was 150 to 180 months’ impr isonment—the Stipulated Guidelines Range less the requested Downward Departure Provisi on for Parrish’s prior 31 month state term of imprisonment—and recognized that to reach the government’s requested sentence of

211 months the court would have to impose an upward varian ce. The district court then sentenced Parrish to 195 months’ imprisonmen t, which reflected an upward variance but not to the extent requested by the government. In explaining its decision, the court stated that the factors leading to the variance included Parrish’s “lea dership of a gang engaged in frequent acts of violence” and his involvemen t “in shootings, possession of firearms, [and] a stabbing.” App’x at 139. Parrish objected to the sentence, arguing that the government’s request for an upward variance was in breach of its promise not to oppose his request for the downward departure and that the request improperly influenced the district court’s

decision. The district court overruled Parr ish’s objection and e xplained “[t]he plea agreement did not, in my ju dgment, bar the government from” requesting a variance. App’x

at 144. A timely appeal followed.

II. Discussion

Parrish presents one issue on appeal: Wh ether the government breached its plea agreement by requesting an upwa rd variance. The government argues that Parrish’s claim is barred by his appeals waiv er. We have long enforced appeal waivers “if they are knowingly, voluntarily, and competently provi ded by the defendant . . . . [B]ut because plea agreements are unique contracts, we temp er the application of ordinary contract4 principles with special due process concerns for fairness and the adequacy of procedural safeguards.” United States v. Riggi , 649 F.3d 143, 147 (2d Cir. 2011) (internal quotation marks and citations omitted). Thus, a waiver is unenforceable in su ch circumstances as “when the sentence was imposed based on constitutionally impe rmissible factors[,] . . . when the government breached the plea agreemen t, or when the sentencing court failed to enunciate any rationale for the defendant’s sentence.” United States v. Gomez-Perez , 215 F.3d 315, 319 (2d Cir. 2000) (internal citati ons omitted). As a result, whether Parrish’s appeal waiver is binding turns on whether th e government breached its obligations under the parties’ plea agreement. We hold that it did not, and thus the appeals waiver bars this appeal.

“We review interpretati ons of plea agreements de novo and in accordance with principles of contract law.” United States v. Rivera , 298 F.3d 128, 133 (2d Cir. 2002). We thus must give effect to the parties’ agre ement as written, while recognizing that “any ambiguities in the agreement mu st be resolved in favor of the defendant” and “the government must take particular care in fulfilling its responsibilities.” Id. (internal quotation marks omitted). Here, th e parties’ agreement is clear.

Parrish’s agreement set out three particular ly relevant provisions . First, the parties stipulated to a guidelines range between 18 1 to 211 months’ imprisonment. Second, the government agreed not to oppo se Parrish’s request for a do wnward departure based on the 31 months he was imprisoned fo r a prior related state offense. And third, the government retained the ability to seek an upward variance based on sentencing factors under 18 U.S.C. § 3553(a). Together, these provisions allo wed the government to pursue any sentence within the Stipulated Guide lines Range, or ou tside the range if it relied on factors supporting a variance, so long as it did not re ly on an objection to the Downward Departure

Provision.

The record shows th e government stayed within thes e bounds. Although it sought a sentence of 211 months’ imprisonment, reflec ting an upward variance, the government made clear its argument depended on § 3553(a) factors, rather than opposition to Parrish’s requested downward departure. In fact, th e government agreed the downward departure was appropriate in this case, and denied, ea ch time it was asked, that its sentence recommendation had anything to do with crediti ng Parrish’s time spent in prison for his prior crime.

Parrish claims our prior decisions comp el a different result. Here, however, the government did not challenge the propriety of the downward departure, as it did in United States v. Griffin , 510 F.3d 354 (2d Cir. 2007), af ter agreeing not to do so. 510 F.3d at 364- 65 (finding the government in breach of a plea agreement when it challenged the defendant’s request for a downward adjustme nt for acceptance of responsibility after promising it would not do so); see also United States v. Vaval , 404 F.3d 144, 153-54 (2d Cir. 2005) (finding that the government brea ched its obligation under a plea agreement not5 to seek an upward departure or to advocate for a particular sentence by making statements serving “no purpose other than to advocate that the court upwardly depart or impose a high

sentence within the Guid elines range”). Nor does Parrish allege the parties’ plea agreement was confusing or so technica l he did not understand it. See United States v. Rosa , 123 F.3d 94, 101 (2d Cir. 1997) (casting doubt on the va lidity of confusing or highly technical plea agreements defendants are unlikely to understand).

Rather, the government’s approach here is most similar to United States v. Miller

, 993 F.2d 16 (2d Cir. 1993), where we held that the government’s oral promise at the plea proceedings not “to bar [Miller] from maki ng his motion for a downward departure” on the basis of the defendant’s “psychiatric state” did not preclude a request by the Government for an upward departure based on the harm to the victim. 993 F.2d at 18, 20. We held that

there is “no basis in the Guidel ines or in logic for [the] pr oposition that an agreement by the government not to oppose a defendant's motion for a downward departure should, in the absence of an express agreement, ba r the government from seeking an upward departure on appropriate grounds.” Id. Here, as in Miller , the government agreed not to oppose a specific downward depart ure request, and here, as in Miller , nothing in the agreement kept the government from seeking a variance to a 211 month sentence. In fact,

unlike Miller , the written plea agreem ent here specifically permitted such a request.

Nevertheless, Parrish challenges the go vernment’s good faith, arguing that the government breached the spirit of the parties’ agreement by seeking a 211 month sentence

“ only if the Court granted the negotiated down ward departure.” Reply Br. at 2. He maintains that the government made this c ondition clear in a footnote stating: “To the

extent the Court is inclined to give Parrish credit for time sp ent in jail on relevant conduct

. . . the Government asks that the Court im pose a sentence of 21 1 months imprisonment after such credit is given, so that Parrish’s act ual sentence is 211 months.” App’x at 91. Parrish also claims the government’s request for an upward variance in the exact amount of his downward departure provides additional evidence of bad faith. Bu t the record merely indicates that the Government sought a tota l sentence of 211 months’ imprisonment based on the factors set forth in 18 U.S.C. § 3553(a), as it had the right to do under the plea agreement and which the defendant’s cond uct well-supported. Thus, we find the government’s request consistent with a good fa ith attempt to seek an appropriate sentence, within the bounds of the plea agreement, rather than an effo rt to frustrate Parrish’s plea
agreement.6 Conclusion

We have reviewed Parrish’s remaining ar guments and find them without merit. For the reasons stated above, we AFFIRM the district court’s judgment.

FOR THE COURT: Catherine O’Hagan Wolfe,

Clerk of Court