22-2561 United States v. Garcia
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 TO 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 17th day of November, two thousand twenty-three.
PRESENT: WILLIAM J. NARDINI, BETH ROBINSON, MYRNA PÉREZ, Circuit Judges. _________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 22-2561
ANDERSON GARCIA, AKA SEALED DEFENDANT 1,
Defendant-Appellant. _________________________________________ FOR APPELLEE: JUN XIANG, Assistant United States Attorney (Rebecca T. Dell, on the brief) for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
FOR APPELLANT: MATTHEW B. LARSEN, Assistant Federal Defender, Federal Defenders of New York, Appeals Bureau, New York, NY.
Appeal from a judgment of the United States District Court for Southern
District of New York (Berman, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED.
Appellant Anderson Garcia appeals from a judgment of conviction entered
on September 21, 2022, following his guilty plea. We assume the parties’
familiarity with the underlying facts, procedural history, and arguments on
appeal, to which we refer only as necessary to explain our decision to dismiss
this appeal.
On January 27, 2022, Garcia pled guilty to one count of conspiracy to
commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 pursuant to a written
plea agreement. As part of the agreement, the parties stipulated to a Guidelines
range of 140 to 175 months’ imprisonment, and Garcia agreed “not [to] file a
2 direct appeal; nor bring a collateral challenge . . . of any sentence within or below
the Stipulated Guidelines Range,” App’x 17.
At the plea hearing, the district court confirmed that Garcia had read the
plea agreement, discussed it with his counsel, and understood it. The court
“singl[ed] out several provisions” of the agreement it wanted to emphasize:
The next such provision contains waivers of appeal. In that plea agreement, Mr. Garcia, you agree not to file a direct appeal. You also agree not to bring what’s called a collateral challenge, which includes, but is not limited to, an application under Title 28, United States Code, Sections 2255 and/or 2241 -- this refers to the so-called habeas corpus provisions -- of any sentence that is within or below the stipulated guideline range as found of 140 to 175 months of incarceration.
Let me just summarize that again. This provision that I have just referred to indicates that you are going to waive certain rights you would otherwise have to appeal or to challenge your conviction if the sentence imposed on you is in fact within the stipulated guideline range of 147 to 175 months of imprisonment. Do you realize that?
Tr. 18. 1 Garcia responded: “Yes, your Honor.” Id. The court then addressed the
remaining components of the appeal waiver, confirming that Garcia “agree[d]
not to appeal or bring a collateral challenge” to any term of supervised release
less than or equal to the statutory maximum or any fine less than or equal to
1 “Tr.” refers to the transcript of Garcia’s change-of-plea hearing, which is attached as the sole exhibit to the government’s affirmation in support of its motion to dismiss the appeal, App. Ct. Dkt. 40.
3 $250,000. Id. 18–19. Satisfied that Garcia pled guilty knowingly and voluntarily,
the court accepted his plea.
The court sentenced Garcia on September 21, 2022. It observed that Garcia
had bipolar disorder, anxiety, and substance abuse problems, and opined that it
would be difficult for Garcia to overcome these “serious cooccurring disorders . .
. without ever completing a formal outpatient treatment program.” App’x 36.
The court opined that our system “doesn’t do enough . . . to try and help people
incarcerated,” and that it would be “very desirable” if people “could devote their
entire period of incarceration to substance abuse [treatment], education, [and]
mental health treatment.” Id. 53–54. It further suggested that incapacity “is
vital” for individuals like Garcia and “is sometimes the only thing that enables a
person to accept treatment.” Id. 66, 68.
The court sentenced Garcia to 145 months’ imprisonment and three years’
supervised release. It also recommended “that [Garcia] be housed at a facility
where he can receive appropriate drug treatment and mental health treatment.”
Id. 81. Garcia appealed, challenging the legality of his sentence.
The government moved to dismiss the appeal, citing the appellate waiver.
Garcia argued, among other things, that the waiver was void because the district
4 court improperly sentenced him based on his need for rehabilitation in violation
of the Sentencing Reform Act, 18 U.S.C. § 3582(a), as interpreted by Tapia v.
United States, 564 U.S. 319 (2011). The Court granted the government’s motion to
dismiss, and Garcia filed a motion for reconsideration. The Court granted his
motion and held oral argument on September 12, 2023.
“Waivers of the right to appeal a sentence are presumptively enforceable.”
United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). While “[a] violation of a
fundamental right warrants voiding an appeal waiver,” United States v. Riggi, 649
F.3d 143, 147 (2d Cir. 2011), this occurs in very limited circumstances:
[A] defendant may have a valid claim that the waiver of appellate rights is unenforceable, such as when the waiver was not made knowingly, voluntarily, and competently, when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed to enunciate any rationale for the defendant’s sentence,
United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000) (internal citations
omitted). Outside of these limited circumstances, we have upheld appellate
waivers “even in circumstances where the sentence was conceivably imposed in
an illegal fashion or in violation of the Guidelines” as long as the ultimate
sentence was within the range contemplated in the plea agreement. Id.
5 Garcia argues that a court’s failure to enunciate any rationale for a sentence
vitiates an appeal waiver, and therefore that a court’s reliance on an unlawful
rationale must as well. Sentencing without proffered reasons, he argues,
“amount[s] to an abdication of judicial responsibility,” and so too does
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22-2561 United States v. Garcia
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 TO 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 17th day of November, two thousand twenty-three.
PRESENT: WILLIAM J. NARDINI, BETH ROBINSON, MYRNA PÉREZ, Circuit Judges. _________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 22-2561
ANDERSON GARCIA, AKA SEALED DEFENDANT 1,
Defendant-Appellant. _________________________________________ FOR APPELLEE: JUN XIANG, Assistant United States Attorney (Rebecca T. Dell, on the brief) for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
FOR APPELLANT: MATTHEW B. LARSEN, Assistant Federal Defender, Federal Defenders of New York, Appeals Bureau, New York, NY.
Appeal from a judgment of the United States District Court for Southern
District of New York (Berman, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED.
Appellant Anderson Garcia appeals from a judgment of conviction entered
on September 21, 2022, following his guilty plea. We assume the parties’
familiarity with the underlying facts, procedural history, and arguments on
appeal, to which we refer only as necessary to explain our decision to dismiss
this appeal.
On January 27, 2022, Garcia pled guilty to one count of conspiracy to
commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 pursuant to a written
plea agreement. As part of the agreement, the parties stipulated to a Guidelines
range of 140 to 175 months’ imprisonment, and Garcia agreed “not [to] file a
2 direct appeal; nor bring a collateral challenge . . . of any sentence within or below
the Stipulated Guidelines Range,” App’x 17.
At the plea hearing, the district court confirmed that Garcia had read the
plea agreement, discussed it with his counsel, and understood it. The court
“singl[ed] out several provisions” of the agreement it wanted to emphasize:
The next such provision contains waivers of appeal. In that plea agreement, Mr. Garcia, you agree not to file a direct appeal. You also agree not to bring what’s called a collateral challenge, which includes, but is not limited to, an application under Title 28, United States Code, Sections 2255 and/or 2241 -- this refers to the so-called habeas corpus provisions -- of any sentence that is within or below the stipulated guideline range as found of 140 to 175 months of incarceration.
Let me just summarize that again. This provision that I have just referred to indicates that you are going to waive certain rights you would otherwise have to appeal or to challenge your conviction if the sentence imposed on you is in fact within the stipulated guideline range of 147 to 175 months of imprisonment. Do you realize that?
Tr. 18. 1 Garcia responded: “Yes, your Honor.” Id. The court then addressed the
remaining components of the appeal waiver, confirming that Garcia “agree[d]
not to appeal or bring a collateral challenge” to any term of supervised release
less than or equal to the statutory maximum or any fine less than or equal to
1 “Tr.” refers to the transcript of Garcia’s change-of-plea hearing, which is attached as the sole exhibit to the government’s affirmation in support of its motion to dismiss the appeal, App. Ct. Dkt. 40.
3 $250,000. Id. 18–19. Satisfied that Garcia pled guilty knowingly and voluntarily,
the court accepted his plea.
The court sentenced Garcia on September 21, 2022. It observed that Garcia
had bipolar disorder, anxiety, and substance abuse problems, and opined that it
would be difficult for Garcia to overcome these “serious cooccurring disorders . .
. without ever completing a formal outpatient treatment program.” App’x 36.
The court opined that our system “doesn’t do enough . . . to try and help people
incarcerated,” and that it would be “very desirable” if people “could devote their
entire period of incarceration to substance abuse [treatment], education, [and]
mental health treatment.” Id. 53–54. It further suggested that incapacity “is
vital” for individuals like Garcia and “is sometimes the only thing that enables a
person to accept treatment.” Id. 66, 68.
The court sentenced Garcia to 145 months’ imprisonment and three years’
supervised release. It also recommended “that [Garcia] be housed at a facility
where he can receive appropriate drug treatment and mental health treatment.”
Id. 81. Garcia appealed, challenging the legality of his sentence.
The government moved to dismiss the appeal, citing the appellate waiver.
Garcia argued, among other things, that the waiver was void because the district
4 court improperly sentenced him based on his need for rehabilitation in violation
of the Sentencing Reform Act, 18 U.S.C. § 3582(a), as interpreted by Tapia v.
United States, 564 U.S. 319 (2011). The Court granted the government’s motion to
dismiss, and Garcia filed a motion for reconsideration. The Court granted his
motion and held oral argument on September 12, 2023.
“Waivers of the right to appeal a sentence are presumptively enforceable.”
United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010). While “[a] violation of a
fundamental right warrants voiding an appeal waiver,” United States v. Riggi, 649
F.3d 143, 147 (2d Cir. 2011), this occurs in very limited circumstances:
[A] defendant may have a valid claim that the waiver of appellate rights is unenforceable, such as when the waiver was not made knowingly, voluntarily, and competently, when the sentence was imposed based on constitutionally impermissible factors, such as ethnic, racial or other prohibited biases, when the government breached the plea agreement, or when the sentencing court failed to enunciate any rationale for the defendant’s sentence,
United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000) (internal citations
omitted). Outside of these limited circumstances, we have upheld appellate
waivers “even in circumstances where the sentence was conceivably imposed in
an illegal fashion or in violation of the Guidelines” as long as the ultimate
sentence was within the range contemplated in the plea agreement. Id.
5 Garcia argues that a court’s failure to enunciate any rationale for a sentence
vitiates an appeal waiver, and therefore that a court’s reliance on an unlawful
rationale must as well. Sentencing without proffered reasons, he argues,
“amount[s] to an abdication of judicial responsibility,” and so too does
sentencing based on “a consideration Congress and the Supreme Court have
ruled out,” App. Ct. Dkt. 62 at 2 (internal citations omitted). We disagree.
A Tapia error is, at bottom, a misapplication of the Sentencing Reform Act,
which instructs courts to “recogniz[e] that imprisonment is not an appropriate
means of promoting correction and rehabilitation,” 18 U.S.C. § 3582(a). See 564
U.S. at 327. We have indeed held that “an arbitrary practice of sentencing
without proffered reasons would amount to an abdication of judicial
responsibility, subject to mandamus.” United States v. Yemitan, 70 F.3d 746, 748
(2d Cir. 1995). But a Tapia error cannot be described as “sentencing without
proffered reasons,” id. (emphasis added), but rather, as sentencing with a
rationale deemed improper by Congress. A Tapia error therefore does not
implicate a total abdication of duty, but the misapplication of a sentencing
court’s duty.
6 This Court regularly enforces appellate waivers in the face of such errors
where the ultimate sentence was within the range contemplated in the plea
agreement. See, e.g., Arevalo, 628 F.3d at 98–100 (enforcing appellate waiver
despite district court’s failure to comply with Rule 32); Yemitan, 70 F.3d at 747–49
(enforcing appellate waiver despite district court’s failure to provide specific
reasons for imposing the sentence as required under 18 U.S.C. § 3553(c)(1));
United States v. Rosa, 123 F.3d 94, 101–102 (2d Cir. 1997) (enforcing appellate
waiver despite casting doubt on whether defendant understood the waiver);
United States v. Buissereth, 638 F.3d 114, 117–18 (2d Cir. 2011) (enforcing appellate
waiver despite district court’s failure to rule on objections to the PSR, rule on the
requests for downward departures and a variance, adopt the findings of the PSR,
mention the factors set forth in 18 U.S.C. § 3553(a), or calculate a sentencing
range under the Guidelines); Sanford v. United States, 841 F.3d 578, 580–81 (2d Cir.
2016) (enforcing appellate waiver despite that the defendant was sentenced
under a Guidelines provision later ruled unconstitutional). Therefore, under the
circumstances of this case, we conclude Garcia’s appellate waiver is enforceable
notwithstanding the alleged Tapia error at sentencing.
* * *
7 We have considered Garcia’s remaining arguments and conclude they are
without merit. For the foregoing reasons, the appeal is DISMISSED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court