United States v. Francis

• Court: Court of Appeals for the Second Circuit
• Decided: May 27, 2026
• Docket: 25-1817
• Status: Unpublished

Opinion

25-1817 United States v. Francis

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of May, two thousand twenty-six. Present: AMALYA L. KEARSE, WILLIAM J. NARDINI, BETH ROBINSON, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA,

Appellee,

v. 25-1817 NAZEEM FRANCIS,

Defendant-Appellant. _____________________________________

For Defendant-Appellant: Lance A. Clarke and Ethan Van Buren, Hamilton Clarke, LLP, New York, NY

For Appellee: Dylan A. Stern and Andrew D. Reich, Assistant United States Attorneys, for Joseph Nocella, Jr., United States Attorney for the Eastern District of New York, Brooklyn, NY

1 Appeal from a judgment of the United States District Court for the Eastern District of New

York (Eric N. Vitaliano, District Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal is DISMISSED IN PART and the judgment of the district court is

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

Defendant-Appellant Nazeem Francis appeals from a judgment of the United States

District Court for the Eastern District of New York, entered on July 15, 2025, convicting Francis

of assaulting a federal corrections officer, in violation of 18 U.S.C. § 111(a)(l), (b).

On November 19, 2020, Francis was arrested in connection with a failed robbery that

resulted in a murder. He was then indicted in the United States District Court for the Southern

District of New York on a number of federal charges and, after pleading guilty to attempted Hobbs

Act robbery, was sentenced to a 240-month term of imprisonment by United States District Judge

Mary Kay Vyskocil.

Following his sentencing on the robbery offense, and while being held at the Metropolitan

Detention Center in Brooklyn, Francis committed the conduct that gave rise to the present appeal:

He attacked a correctional officer who had instructed him to return to his cell in the wake of a fight

between other inmates. The assault left the officer with a fractured rib and a laceration to the

bridge of his nose. On October 21, 2022, Francis was indicted on the present charge for assaulting

the officer. On February 16, 2024, Francis pled guilty to that count pursuant to a plea agreement

that included an appellate waiver. The district court sentenced Francis to a prison term of 168

months, with 72 months to run concurrently with the earlier 240-month sentence, and 96 months

to run consecutively. At sentencing, Francis did not at that time object to the 168-month term of

imprisonment. Although defense counsel asked the court to impose any prison term to run entirely

2 concurrently to his undischarged term of incarceration, he did not object that running it partially

consecutively was substantively unreasonable. The district court also sentenced Francis to a three-

year term of supervised release subject to various conditions, including thirteen discretionary

“standard” conditions of supervision.

Francis now argues, for the first time on appeal, that his prison sentence was both

procedurally and substantively unreasonable. He also contends that the district court erred by

failing to orally pronounce the thirteen conditions of supervised release at sentencing. We assume

the parties’ familiarity with the case.

I. Term of incarceration

We begin with Francis’s challenge to the procedural and substantive reasonableness of his

prison sentence. “We employ a particularly deferential form of abuse-of-discretion review that we

apply both to the procedures used to arrive at the sentence (procedural reasonableness) and to the

length of the sentence (substantive reasonableness).” United States v. Martinez, 110 F.4th 160,

174 (2d Cir. 2024).1 As here, however, if the defendant fails to raise an objection before the district

court, this Court applies the even-more-deferential standard of plain error. See United States v.

Alvarado, 720 F.3d 153, 157 (2d Cir. 2013).

As an initial matter, we note that Francis does not clearly challenge the district court’s

decision to impose a 168-month sentence; rather, he seems to focus entirely on the district court’s

decision to run 96 months consecutively to his undischarged 240-month sentence for his previous

Hobbs Act conviction. As a procedural matter, Francis argues that the district court failed to

consider all of the sentencing factors set forth in 18 U.S.C. § 3553(a) and inadequately explained

1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted.

3 the sentence imposed. And as a substantive matter, Francis contends that running 96 months

consecutively to his previous 240-month sentence effectively resulted in a 336-month sentence,

which he characterizes as an unreasonable “upward variance.” Appellant’s Br. at 24 (emphasis in

original).

To the extent that Francis’s brief can be construed to challenge the 168-month sentence,

without regard to its consecutive or concurrent nature, both his procedural and substantive claims

are squarely foreclosed by his appellate waiver. Francis’s plea agreement contains the following

language: “The defendant agrees not to file an appeal or otherwise challenge . . . the conviction or

sentence in the event that the Court imposes a term of imprisonment of 210 months or below.”

App’x at 16. We have held that “[w]aivers of the right to appeal a sentence are presumptively

enforceable,” United States v. Borden, 16 F.4th 351, 354 (2d Cir. 2021), and exceptions to this

rule are limited to instances where (1) “the waiver was not made knowingly, voluntarily, and

competently,” (2) “the sentence was imposed based on constitutionally impermissible factors, such

as ethnic, racial or other prohibited biases,” (3) “the government breached the plea agreement,” or

(4) “the sentencing court failed to enunciate any rationale for the defendant’s sentence, thus

amounting to an abdication of judicial responsibility subject to mandamus,” United States v.

Thompson, 143 F.4th 169, 182 (2d Cir. 2025). Upon review of the record, we conclude that

Francis’s waiver is enforceable. At the plea colloquy, the district court confirmed generally that

Francis was entering his plea knowingly and voluntarily, and specifically that Francis understood

that his plea agreement contained an appellate waiver. There is no indication in the record that the

court imposed Francis’s sentence based upon constitutionally impermissible factors, such as ethnic

or racial bias, or that the Government failed to adhere to any of its obligations under the agreement.

And at sentencing, the court provided a lengthy explanation for Francis’s sentence. In short,

4 Francis has not demonstrated that his appeal fits into any of the exceptions we have recognized to

a valid appellate waiver.

Francis nevertheless contends that his “procedural challenges to the sentence are exempt

from the waiver both by agreement and as a matter of right.” Appellant’s Br. at 34. That is

because, he says, the plea agreement recited the well-established requirement that the district court

must consider all of the sentencing factors listed in 18 U.S.C. § 3553(a), and such consideration is

“a right of constitutional dimension.” Appellant’s Br. at 35. Neither contention is correct. For

one thing, as a matter of contractual interpretation, we have repeatedly held that a waiver like the

one in Francis’s agreement—which here applies “without regard to the sentencing analysis used

by the Court,” App’x at 16—forecloses any claim that the district court failed to properly consider

particular aggravating or mitigating factors at sentencing. See United States v. Buissereth, 638

F.3d 114, 117–18, 117 n.1 (2d Cir. 2011) (finding this language to cover a procedural

reasonableness challenge based on the district court’s failure to reference consideration of the

§ 3553(a) factors). And we have held that such agreements can validly waive claims of that type

of error. See id. at 117 (“While [the defendant’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.”). Moreover, Francis does not explain how the purported violation of a statute—here,

§ 3553(a)—constitutes violation of a right “of constitutional dimension,” see United States v.

Garcia, 166 F.3d 519, 522 (2d Cir. 1999) (enforcing appellate waiver against a due process claim

that constituted nothing more than “a poorly disguised attack on the merits of [the defendant’s]

sentence”); nor does he explain why such a claim, even if grounded in the Constitution, would be

unwaivable.

5 Contrary to the Government’s contention, however, the particular appellate waiver

contained in Francis’s plea agreement does not bar him from challenging—either procedurally or

substantively—the district court’s decision to run 96 months of his sentence consecutively to his

prior sentence. As Francis correctly points out, his appellate waiver does not purport to waive any

claim regarding the extent to which his sentence runs consecutively to another sentence. We have

held that we will not construe such a narrowly framed waiver to bar a similar claim on appeal. See

United States v. Stearns, 479 F.3d 175, 178 (2d Cir. 2007). (We confess to some puzzlement that

the Government’s brief makes no mention of Stearns, even though it was squarely raised in

Francis’s opening brief.)

Nevertheless, Francis’s challenges fail on the merits to the extent that he disputes the

district court’s decision to run 96 months of his 168-month sentence consecutively to his prior

sentence. Procedurally, he points to nothing in the record to undermine our longstanding

presumption that “the sentencing judge has considered all relevant § 3553(a) factors and

arguments,” especially given the district court’s “explicit statement that it had considered

the § 3553(a) factors” and its lengthy discussion of the factors at sentencing. United States v.

Rosa, 957 F.3d 113, 118 (2d Cir. 2020). The record here reflects such consideration. See App’x

at 50–52, 54, 63-67. And substantively, we find no error with the district court’s decision to

effectively require that Francis serve an additional 96 months in prison, beyond the 240 months

that he had received for his earlier Hobbs Act robbery conviction. Because the 240-month sentence

is not on appeal, Francis is incorrect in suggesting that his now-aggregate 336-month term of

imprisonment was “effectively . . . an upward variance” from some hypothetical baseline.

Appellant’s Br. at 24 (emphasis in original). Instead, the relevant question is whether it was

substantively reasonable to run 96 months consecutively to Francis’s earlier sentence, so that he

6 would face additional punishment for his assault on a corrections officer. We answer in the

affirmative. As the district court reasonably concluded, additional prison time was needed to avoid

“award[ing] a free kick to criminal offenders who are in jail who think they can do anything they

want because no time will be added.” App’x at 66. Ruling otherwise would encourage violence

against corrections officers, whose “job[s] [are] tough enough.” Id. And Francis’s lengthy

criminal history, which includes charges arising from two more prison assaults that occurred after

the one at issue here but before this sentencing, further supports the conclusion that it was

reasonable to run 96 months consecutively to Francis’s undischarged prison term for a separate

crime.

II. Conditions of supervised release

Francis argues, and the Government agrees, that the district court erred by including in the

judgment thirteen discretionary standard conditions of supervised release, even though they were

not orally pronounced at sentencing or incorporated by reference to a writing, setting out those

conditions, that was made available to Francis. We likewise agree that a limited remand is

appropriate for the district court to vacate those thirteen conditions and, if it wishes, to consider

reimposing them in the defendant’s presence, see United States v. Maiorana, 153 F.4th 306,

314–15 (2d Cir. 2025) (en banc), subject as always to the defendant’s ability to waive his rights in

that regard, id. at 315 n.14.

* * *

7 We have considered Francis’s remaining arguments and find them unpersuasive. For the

foregoing reasons, we GRANT IN PART the Government’s motion to dismiss, AFFIRM IN

PART the judgment of the district court and VACATE AND REMAND IN PART for the limited

purpose outlined above.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk