United States v. Antonetty (Olivera)

Second Circuit

United States v. Antonetty (Olivera)

372 F. App'x 174

CourtCourt of Appeals for the Second Circuit

DecidedApril 20, 2010

Docket09-0034-cr

StatusUnpublished

Cited by1 cases

This text of 372 F. App'x 174 (United States v. Antonetty (Olivera)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Antonetty (Olivera), 372 F. App'x 174 (2d Cir. 2010).

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Opinion

SUMMARY ORDER

Defendant-appellant Jorge Olivera appeals from a judgment of the United States District Court for the Western District of New York (Skretny, J.), entered December 30, 2008, sentencing Oliv-era to 168 months in prison, pursuant to a plea agreement, for his role in a heroin-distribution conspiracy. On appeal, Oliv-era argues that the district court violated principles of due process and abused its discretion in refusing to hold, prior to re-sentencing, an evidentiary hearing regarding the extent of the assistance that he and his family provided to the government. We assume the parties’ familiarity with the underlying facts and procedural history of the case.

At the outset, the government contends that the plea agreement’s explicit provision waiving Olivera’s right of appeal precludes review by this Court. We agree. To be enforceable, guilty pleas and waivers of the right to appeal must be “knowingly, voluntarily, and competently provided by the defendant.” United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir.2000). Olivera asserts that the waiver in his plea agreement was not knowing because the parties to the agreement entered into it believing that the court, in granting a downward departure, could consider factors other than Olivera’s substantial assistance.

Olivera’s argument is unavailing. There is no indication that the parties had in mind a reduction based on non-assistance considerations. Neither the agreement nor the transcript of the plea allocution mentions factors for downward reduction other than substantial assistance. Moreover, the plea agreement explicitly recognized that any downward departure was left to the discretion of the district court. Thus, upon entering into the agreement, Olivera could have had no settled expecta *175 tion that the court would depart at all, let alone that it would consider factors other than substantial assistance. See United States v. Rosen, 409 F.3d 535, 548 (2d Cir.2005).

We have considered all of Olivera’s arguments and find them to be without merit. Accordingly, we DISMISS his appeal as waived.

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SUMMARY ORDER

Defendant-appellant Jorge Olivera appeals from a judgment of the United States District Court for the Western District of New York (Skretny, J.), entered December 30, 2008, sentencing Oliv-era to 168 months in prison, pursuant to a plea agreement, for his role in a heroin-distribution conspiracy. On appeal, Oliv-era argues that the district court violated principles of due process and abused its discretion in refusing to hold, prior to re-sentencing, an evidentiary hearing regarding the extent of the assistance that he and his family provided to the government. We assume the parties’ familiarity with the underlying facts and procedural history of the case.

At the outset, the government contends that the plea agreement’s explicit provision waiving Olivera’s right of appeal precludes review by this Court. We agree. To be enforceable, guilty pleas and waivers of the right to appeal must be “knowingly, voluntarily, and competently provided by the defendant.” United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir.2000). Olivera asserts that the waiver in his plea agreement was not knowing because the parties to the agreement entered into it believing that the court, in granting a downward departure, could consider factors other than Olivera’s substantial assistance.

Olivera’s argument is unavailing. There is no indication that the parties had in mind a reduction based on non-assistance considerations. Neither the agreement nor the transcript of the plea allocution mentions factors for downward reduction other than substantial assistance. Moreover, the plea agreement explicitly recognized that any downward departure was left to the discretion of the district court. Thus, upon entering into the agreement, Olivera could have had no settled expecta *175 tion that the court would depart at all, let alone that it would consider factors other than substantial assistance. See United States v. Rosen, 409 F.3d 535, 548 (2d Cir.2005).

We have considered all of Olivera’s arguments and find them to be without merit. Accordingly, we DISMISS his appeal as waived.

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372 F. App'x 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-antonetty-olivera-ca2-2010.

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