United States v. Clemons

Second Circuit

United States v. Clemons

140 F. App'x 325

CourtCourt of Appeals for the Second Circuit

DecidedAugust 15, 2005

DocketDocket No. 04-3913-CR

StatusPublished

This text of 140 F. App'x 325 (United States v. Clemons) 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.

Bluebook

United States v. Clemons, 140 F. App'x 325 (2d Cir. 2005).

Pincite

Opinion

SUMMARY ORDER

Defendant-appellant appeals from his conviction following a guilty plea for violations of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.

McCrorey argues on appeal that his sentence was incorrectly determined in light of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), despite his waiver of the right to appeal as part of his plea agreement. A waiver of a right to appeal is enforceable against grounds for appeal which arise subsequent to the plea agreement due to a change in the law. United States v. Morgan, 406 F.3d 135, 137 (2d Cir.2005). A defendant may continue to seek relief from the underlying plea agreement despite a waiver of the right to appeal, if the plea was “not knowing and voluntary,” or where the sentence was “based on a constitutionally impermissible factor.” United States v. Haynes, 412 F.3d 37, 39 (2d Cir.2005). McCrorey does not. argue on appeal that his plea agreement was not knowing and voluntary under the law that existed at the time. See id. (holding that “[w]hile ignorance of then-existing rights can invalidate a plea agreement in some cases, ignorance of future rights is unavoidable and not a basis for avoiding a plea agreement.”) Therefore, the waiver of his right to appeal as part of the plea agreement precludes him from challenging the conviction and sentence based on the subsequent Supreme Court ruling in Booker.

For the above reasons, we affirm the conviction and the sentence of the district court.

Free access — add to your briefcase to read the full text and ask questions with AI

SUMMARY ORDER

Defendant-appellant appeals from his conviction following a guilty plea for violations of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.

McCrorey argues on appeal that his sentence was incorrectly determined in light of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), despite his waiver of the right to appeal as part of his plea agreement. A waiver of a right to appeal is enforceable against grounds for appeal which arise subsequent to the plea agreement due to a change in the law. United States v. Morgan, 406 F.3d 135, 137 (2d Cir.2005). A defendant may continue to seek relief from the underlying plea agreement despite a waiver of the right to appeal, if the plea was “not knowing and voluntary,” or where the sentence was “based on a constitutionally impermissible factor.” United States v. Haynes, 412 F.3d 37, 39 (2d Cir.2005). McCrorey does not. argue on appeal that his plea agreement was not knowing and voluntary under the law that existed at the time. See id. (holding that “[w]hile ignorance of then-existing rights can invalidate a plea agreement in some cases, ignorance of future rights is unavoidable and not a basis for avoiding a plea agreement.”) Therefore, the waiver of his right to appeal as part of the plea agreement precludes him from challenging the conviction and sentence based on the subsequent Supreme Court ruling in Booker.

For the above reasons, we affirm the conviction and the sentence of the district court.

Cite This Page — Counsel Stack

Bluebook (online)

140 F. App'x 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clemons-ca2-2005.

Opinion

Related

Cite This Page — Counsel Stack