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Is A Waiver Of Appeal Enforceable If Sentencing Court Fails To Make Specific Rulings And Findings


UNITED STATES V. BUISSERETH
Second Circuit Court of Appeals
Decided March 15, 2011

Issue : Whether the waiver of appeal, signed at the time of a plea, is enforceable where the sentencing court does not make specific rulings and findings at sentencing.

Holding : In this case the waiver of appeal was enforceable even though the District Court did not make certain findings and rulings in open court at sentencing. The Appeal was dismissed by the Second Circuit, but they did recognize that An appeal waiver, however, does have some limits.

[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

Facts : Defendant-appellant Pierre Buissereth appeals from a November 9, 2009 judgment of conviction entered by the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, Judge), sentencing him principally to 100 months’ imprisonment.

Buissereth contends that his sentence is procedurally unreasonable in light of the District Court’s failure to, among other things, (1) rule on Buissereth’s various objections to the Presentence Investigation Report ("PSR"); (2) calculate a sentencing range under the Sentencing Guidelines; and (3) consider the relevant factors set forth in 18 U.S.C. § 3553(a). The government argues that because Buissereth knowingly and voluntarily signed a valid and enforceable appeal waiver as part of his written plea agreement, he has waived his right to appeal. We agree, and therefore dismiss the appeal.

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 21 U.S.C. § 841(a)(1) 841(b)(1)(B). The plea agreement calculated an anticipated Guidelines range of 100 to 125 months based on Buissereth’s projected offense level and Criminal History Category.

The plea agreement also contained an appeal-waiver provision, under which Buissereth agreed "not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 137 months or below." That is, Buissereth agreed not to appeal his sentence if the District Court sentenced him to 137 months’ imprisonment or less. The District Court sentenced Buissereth to 100 months’ imprisonment.

Legal Analysis : 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).

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.

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 18 U.S.C. § 3553(a); or (5) calculate In relevant part, the appeal waiver contained in the plea agreement of March 17, 2009, states: "[Buissereth] agrees not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 137 months or below. This waiver is binding without regard to the sentencing analysis used by the Court."

An applicable sentencing range under the Sentencing Guidelines. In its written judgment following the sentencing hearing, the District Court did expressly adopt the findings of the PSR and identify the applicable sentencing range. While this was helpful, the District Court still did not do all that it should have. Where, as here, the Guidelines range exceeds 24 months, the sentencing court has a statutory obligation "at the time of sentencing, [to] state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). Moreover, while adopting the findings of the PSR is ordinarily sufficient to satisfy § 3553(c), the findings must be adopted in "open court." United States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004).

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.

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.