United States v. Nourse
2013 U.S. App. LEXIS 14343
| 2d Cir. | 2013Background
- Nourse appealed a 60-month sentence for conspiracy to distribute and possess with intent to distribute over 100 kg of marijuana.
- He challenged the district court’s handling of his criminal-history calculation.
- The waiver of appellate rights was included in his plea agreement, promising not to appeal or collaterally attack a 60-month-or-less sentence while preserving the right to appeal the reasonableness of any longer sentence.
- The district court acknowledged the waiver but its terms were not stated perfectly, and the objection was not preserved.
- The PSR counted three Massachusetts continuances-without-a-finding as criminal-history points; Nourse argued these should not affect his criminal history.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for unpreserved Rule 11(b)(1)(N) errors | Nourse advocates Ready’s knowing/voluntary test. | Court should apply plain-error review. | Plain error review applies. |
| Whether the waiver was knowing and voluntary and properly explained | Waiver terms were not adequately conveyed. | Exchange at plea colloquy showed clear understanding and waiver. | Waiver was knowing and voluntary. |
Key Cases Cited
- United States v. Vonn, 535 U.S. 55 (2002) (plain error review governs unpreserved Rule 11(b)(1)(N) challenges)
- United States v. Youngs, 687 F.3d 56 (2d Cir. 2012) (plain-error framework for Rule 11 violations)
- United States v. Borrero-Acevedo, 533 F.3d 11 (1st Cir. 2008) (plain error standard for unpreserved Rule 11(b)(1)(N) claims)
- United States v. Ready, 82 F.3d 551 (2d Cir. 1996) (knowing and voluntary test pre-dates Rule 11(b)(1)(N) adoption)
- United States v. Fisher, 232 F.3d 301 (2d Cir. 2000) (ambiguous waivers may affect enforceability but here waiver not ambiguous)
- United States v. Morgan, 386 F.3d 376 (2d Cir. 2004) (waiver discussion proper when asked during plea colloquy)