UNITED STATES of America, Appellee, v. Pierre BUISSERETH, Defendant-Appellant.
Docket No. 09-5358-cr.
United States Court of Appeals, Second Circuit.
Argued: Feb. 17, 2011. Decided: March 15, 2011.
638 F.3d 114
III. Conclusion
We hold that non-felony driving while ability impaired sentences should be treated like any other misdemeanor or petty offense sentences not excluded by section
Because the District Court failed to consider whether Gonzalez-Rivera‘s sentence should be counted or excluded under section
Marshall A. Mintz (Laura A. Oppenheim, on the brief), Mintz & Oppenheim LLP, New York, NY, for Defendant-Appellant.
William Campos, Assistant United States Attorney (Loretta E. Lynch, United States Attorney, on the brief, and Susan Corkery, Assistant United States Attorney, of counsel), Office of the United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Before: CABRANES and CHIN, Circuit Judges, and CROTTY, District Judge.*
JOSÉ A. CABRANES, Circuit Judge:
BACKGROUND
Pursuant to a written plea agreement dated March 17, 2009, Buissereth pleaded guilty to one count of possession with intent to distribute cocaine and five grams or more of cocaine base, in violation of
At Buissereth‘s sentencing proceeding, the District Court began by addressing an issue that had recently surfaced with regard to Buissereth‘s legal counsel. After Buissereth‘s plea agreement had been executed, but before the sentencing hearing, one of Buissereth‘s attorneys (not the lead attorney) applied for a job in the United States Attorney‘s Office for the Eastern District of New York—the very office prosecuting Buissereth in this case. The District Court ascertained that Buissereth understood that this potential conflict of interest could have negatively affected his attorney‘s performance at sentencing. The District Court then verified that Buissereth had been fully informed by his attorneys about this matter and, in response to the District Court‘s inquiries, Buissereth confirmed that he continued to have “full faith” in the representation he was receiving.
The District Court then shifted its attention to Buissereth‘s sentence. Following presentations by counsel and Buissereth‘s allocution, the District Court, in relevant part, pronounced and explained its sentence as follows: “Taking into account everything that was said and the records in this case and of course all of [Buissereth‘s counsel‘s] eloquent arguments, the sentence will be as follows: 100 months custody....” Subsequently, in its written judgment following the sentencing hearing, the District Court expressly adopted the findings of the PSR and identified an applicable Guidelines range consistent with that anticipated, if not stipulated, by the government and Buissereth in the plea agreement.
DISCUSSION
On appeal, Buissereth asserts that the appeal-waiver provision is unenforceable because the District Court failed to secure a valid waiver of his Sixth Amendment right to be represented by “conflict-free” counsel. It is well established that “whenever the possibility arises that a counsel‘s ability to represent a particular defendant has been tainted by a conflict of interest,” Williams v. Meachum, 948 F.2d 863, 867 (2d Cir.1991), trial courts should
advise the defendant of his right to ... conflict-free representation, instruct the
defendant as to problems inherent in being represented by an attorney with divided loyalties, allow the defendant to confer with his chosen counsel, encourage the defendant to seek advice from independent counsel, and allow a reasonable time for the defendant to make his decision.
United States v. Curcio, 680 F.2d 881, 890 (2d Cir.1982); see also United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir.1986). In evaluating a district court‘s fidelity to this guidance, however, “we are more concerned with whether the defendant appreciated his predicament and made a properly informed choice than we are with whether the trial judge recited any particular litany of questions.” United States v. Jenkins, 943 F.2d 167, 176 (2d Cir.1991).
Here, the record reveals that the District Court properly ensured that Buissereth was fully informed of the potential conflict of interest involving one of his attorneys and that Buissereth‘s subsequent waiver of this issue was both “knowing” and “intelligent.” Williams, 948 F.2d at 867. Like the defendant in Jenkins, “[i]t is abundantly clear from [Buissereth‘s] responses to Judge [Feuerstein‘s] questions that [Buissereth] completely understood the potential risks arising from [his counsel‘s] application to the U.S. Attorney‘s Office.” Jenkins, 943 F.2d at 176. Accordingly, we reject Buissereth‘s argument that the appeal-waiver provision is unenforceable because of counsel‘s purported conflict of interest.
Buissereth also argues that the appeal-waiver provision is unenforceable because the sentencing court abdicated its “judicial responsibility” by failing to make rulings and findings at his sentencing hearing. See United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir.2000). Although this argument fails, we cannot help but observe that Buissereth‘s sentencing hearing left much to be desired. Among other things, the District Court failed to (1) rule on the numerous filed objections to the PSR; (2) rule on the requests for downward departures and a variance; (3) adopt the findings of the PSR; (4) mention, much less articulate its consideration of, the relevant factors set forth in
While Buissereth‘s appeal waiver did not relieve the District Court of its responsibility to follow the procedural requirements related to the imposition of a sentence, the appeal waiver does preclude this Court from correcting the errors alleged to have occurred below.1 See United States v. Arevalo, 628 F.3d 93, 97 (2d Cir.2010) (holding that the district court‘s failure to make findings regarding disputed portions of the PSR did not render the appeal waiver unenforceable); United States v. Granik, 386 F.3d 404, 412 (2d Cir.2004) (“Knowing and voluntary appel-
An appeal waiver, however, does have some limits. As we have held:
[A] defendant may have a valid claim that the waiver of appellate rights is unenforceable ... when [1] the waiver was not made knowingly, voluntarily, and competently, [2] when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, [3] when the government breached the plea agreement, or [4] when the sentencing court failed to enunciate any rationale for the defendant‘s sentence, thus amounting to an abdication of judicial responsibility subject to mandamus.
Gomez-Perez, 215 F.3d at 319 (quotation marks and citations omitted).
Indeed, because “[p]lea agreements are subject to the public policy constraints that bear upon the enforcement of other kinds of contracts,” we have recognized that “a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court.” Yemitan, 70 F.3d at 748 (quotation marks omitted). “At some point ... an arbitrary practice of sentencing without [proffered] reasons would amount to an abdication of judicial responsibility subject to mandamus,” and the appeal waiver will not be enforced. Id. This case, however, does not present such an extraordinary circumstance. Although the District Court should have made explicit findings and rulings and explained its sentence in open court, it is apparent from the transcript of the sentencing hearing that the District Court gave due consideration to Buissereth‘s sentencing arguments. Indeed, the sentence of 100 months’ imprisonment was reasonably foreseeable at the time of Buissereth‘s plea and undoubtedly taken into account by Buissereth and his counsel in entering the plea agreement. Thus, the sentence imposed surely was not “fundamentally unfair,” Gomez-Perez, 215 F.3d at 320.
CONCLUSION
We have considered all of Buissereth‘s arguments and find them to be without merit. Buissereth‘s appeal is hereby DISMISSED.