#### UNITED STATES, Appellee, v. John DOE, Defendant-Appellant.

No. 13-621.

United States Court of Appeals, Second Circuit.

May 30, 2014.

Amended: June 27, 2014.

Steven Yurowitz, Newman & Greenberg, New York, NY, for Defendant-Appellant.

Brenda K. Sannes (Geoffrey J.L. Brown, on the brief), Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

Present: JON 0. NEWMAN, JOHN M. WALKER, JR., JOSÉ A. CABRANES, Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this appeal is DISMISSED.

Defendant John Doe appeals from a judgment of the District Court sentencing him principally to a 151-month prison term. Doe pleaded guilty, pursuant to a plea agreement accompanied by a separate confidential cooperation agreement, to a charge of manufacturing marijuana plants in violation of 21 U.S.C. § 841(a)(1). Doe challenges his conviction and sentence on the basis that the District Court did not discuss his cooperation agreement at the plea colloquy or sentencing. Accordingly, he contends, his plea was not knowing and voluntary and the sentencing did not comply with the open court requirement as set *31out in 18 U.S.C. § 3553(c).1

BACKGROUND

On September 24, 2012, after Foe was arrested, he entered into an agreement to plead guilty to one count of manufacturing marijuana. The plea agreement stipulated that Doe would not appeal a sentence of 240 months or below. The cooperation agreement provided that the Government would notify the Court of Doe’s cooperation and, if the Government determined that he had provided “substantial assistance,” it could *in its sole discretion*recommend a downward departure pursuant to USSG § 5K1.1 or 18 U.S.C. § 3553(c).

At the plea colloquy, the Court discussed the Guideline calculations and the appeal waiver, but did not discuss the cooperation agreement. On October 4, 2012, the Government moved for a one-level downward departure based on the cooperation agreement. At sentencing, the District Court calculated a Guideline range of 151-188 months, and sentenced Doe to 151 months. In its Statement of Reasons, issued later, the District Court explained that it had departed downward based in part on Doe’s cooperation. Doe appealed his sentence to this Court.

DISCUSSION

Because Doe “never sought to withdraw his plea, and did not object” in the District Court to the alleged Rule 11 violation or the sentence imposed we review his claims for “plain error.” *United States v. Tarbell,*728 F.3d 122, 126 (2d Cir.2013).

At the colloquy, the District Court informed Doe of the 240-month mandatory minimum sentence, and discussed the appeal waiver. Accordingly, Doe knew of the *“direct*consequences of a guilty plea,” 1. e. anything that would have a “definite, immediate and largely automatic effect on the range of ... punishment.” *United States v. Youngs,*687 F.3d 56, 60 (2d Cir.2012) (internal quotation marks omitted). Doe’s claim that the failure to discuss the confidential cooperation agreement rendered his plea unknowing and, therefore, invalid mirrors arguments previously rejected by this Court.

In *Tarbell*the district court discussed the mandatory minimum sentence under the plea agreement, but did not discuss a confidential cooperation agreement. 728 F.3d at 126-27. We held that where the cooperation agreement made clear that there was no promise of a downward departure, and the defendant was aware of the applicable mandatory minimum sentence, the failure to discuss the cooperation agreement did not render the plea unknowing or involuntary. *Id.*Moreover, the “decision not to discuss the confidential cooperation agreement in open court [was] perfectly understandable” and not plain error. *Id.*at 127. We noted however that “the better practice in these circumstances would have been for the District Court to use one of the various tools at its disposal [—closing the courtroom during plea proceedings, sealing the transcript of such proceedings, and issuing rulings under seal—] to reduce if not eliminate the risks that may arise from fulfilling its obligation to ensure that the defendant understands the range of potential penalties, rather than simply remaining completely silent about such a cooperation agreement.” *Id.*(internal quotation marks, citations and alterations omitted).2

*32Like *Tarbell,*this case illustrates the tension that exists between the principle that all relevant aspects of the plea proceeding should be discussed, preferably in open court, and the need to preserve the confidentiality of a defendant’s cooperation with the government in criminal proceedings. At a minimum, we believe that the terms of the cooperation agreement, if not the agreement itself, should be before the sentencing judge at the time the plea is accepted. In the absence of a department-wide policy, however, that tension must be resolved on a case-by-case base. Here, the tension did not result in reversible error because Doe has not shown how the failure to discuss the cooperation agreement affected his substantial rights: he does not contend that he was unaware of the terms of the cooperation agreement, which, regardless, would not necessarily have affected his sentence. Moreover, the agreement ultimately resulted in Doe receiving a *lower*sentence.3 Because doe’s guilty plea was knowing and voluntary, the waiver of his right to appeal any sentence below 240 months is enforceable, and requires dismissal of this appeal.

CONCLUSION

For the reasons set out above, this appeal is DISMISSED.

1

. 18 U.S.C. § 3553(c) provides in relevant part: "The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence ...."

2

. The District Court did not have the benefit of our decision in *Tarbell*when sentencing Doe.

3

. Doe also makes a meritless ineffective assistance argument, claiming that "defense counsel never once advocated that Doe should receive the benefit of [his] cooperation.” But Doe did receive the benefit of the cooperation agreement in the form of a downward departure.