21-112 United States v. Garigen
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 28th day of January, two thousand twenty-two. PRESENT: AMALYA L. KEARSE, JOHN M. WALKER, JR., RICHARD J. SULLIVAN, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 21-112 SHELBY GARIGEN, Defendant-Appellant. _____________________________________ FOR DEFENDANT-APPELLANT: THOMAS J. EOANNOU, Esq., Buffalo, NY. FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY. Appeal from a judgment of the United States District Court for the Western
District of New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that this appeal is DISMISSED.
Shelby Garigen appeals from a judgment of conviction entered on December
31, 2020, following her guilty plea to one charge of access with intent to view
material that contained images of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). The district court sentenced Garigen to thirty-seven
months’ imprisonment, the bottom of the sentencing range provided in her plea
agreement. On appeal, Garigen argues that she received ineffective assistance of
counsel and that her sentence was procedurally unreasonable.
As an initial matter, the government asserts that Garigen’s appeal is barred
by the appellate waiver in her plea agreement. In that agreement, Garigen
“knowingly waive[d] the right to appeal and collaterally attack any component of
a sentence imposed by the [district court] which falls within or is less than the
sentencing range” set out in the agreement, “notwithstanding the manner in which
the [c]ourt determines the sentence.” App. at 73. This Court will find an appellate
waiver “unenforceable only in very limited situations,” including “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. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010) (internal quotation
marks omitted); see United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000)
(stating that we have “upheld waiver provisions even in circumstances where the
sentence was conceivably imposed in an illegal fashion or in violation of the
Guidelines, but yet was still within the range contemplated in the plea
agreement”).
Garigen argues that this Court should decline to enforce her appellate
waiver in light of the government’s alleged misconduct below, which she argues
violated “fundamental tenets of fairness and due process of law.” Garigen Br. at
25. Specifically, Garigen asserts that (1) the parents of a victim (“Victim 1”) made
false and biased statements against Garigen and should not have been allowed to
speak at her sentencing; (2) Victim 1’s father had improper control over the
prosecution of Garigen’s case; and (3) Victim 1’s father was given access to
2 Garigen’s confidential Presentence Investigation Report (“PSR”) and discussed the
contents of her PSR at sentencing.
None of Garigen’s arguments falls within the “very circumscribed”
exceptions to the validity of an appellate waiver. Gomez-Perez, 215 F.3d at 319.
First, even if Victim 1’s parents did not have an express right to speak at Garigen’s
sentencing under the Crime Victims’ Rights Act, 18 U.S.C. § 3771, the court was
certainly within its power to permit them to speak, “[p]rovided that [Garigen]
ha[d] a fair opportunity to respond” – which she did. United States v. Smith, 967
F.3d 198, 216 (2d Cir. 2020) (recognizing that “no limitation shall be placed on the
information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence” (internal quotation
marks and alterations omitted) (quoting 18 U.S.C. § 3661)). Garigen clearly was
free to object or respond to any of the statements that Victim 1’s parents made
during her sentencing, and the district court was permitted to consider all of these
statements as relevant in formulating a sentence.
Second, in asserting that Victim 1’s father “advised the court that he ‘helped
the U.S. Attorney’s Office prosecute this case,’” Garigen Br. at 16, 22, 29, Garigen
3 blatantly mischaracterizes – or at least misconstrues – the record, which reveals
that Victim 1’s father merely expressed gratitude to FBI agents who helped with
the case. See App. at 152 (“I’d like to thank the FBI. . . . I’ve been in contact with
the agents who investigated it and helped the U.S. Attorney’s Office prosecute this
case.”). Indeed, the suggestion that it was Victim 1’s father, as opposed to the FBI
agents, who “helped the U.S. Attorney’s Office prosecute this case” is a distortion
that borders on semantic gamesmanship. Likewise, the contention that Victim 1’s
father professed some “veto power” over the government’s plea offer is not
supported by the record, which merely reflects that the father expressed several
“specific request[s]” to the government, and later the district court, that Garigen
serve jail time. Id. at 158; see Garigen Br. at 30. Finally, Garigen again misinterprets
the record when she asserts that Victim 1’s father had access to her confidential
PSR simply because he acknowledged that the judge had read the PSR, App. at 156
(“I know you’ve read the PSR, Judge”), after the court itself had already referred
to the PSR and adopted the facts therein. 1 Accordingly, we reject Garigen’s
1 Garigen also contends that Victim 1’s father discussed facts from the PSR in his remarks at sentencing, but these facts were also set forth in publicly available documents in Garigen’s case.
4 challenge to the enforceability of her appellate waiver and decline to consider her
appeal as to her sentence.
Garigen also argues that she received ineffective assistance of counsel
“throughout the proceedings, and most particularly prior to and during the
sentencing phase of the prosecution,” Garigen Br. at 31, because her counsel (1)
failed to object after receiving notice that Victim 1’s parents would speak at
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21-112 United States v. Garigen
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 28th day of January, two thousand twenty-two. PRESENT: AMALYA L. KEARSE, JOHN M. WALKER, JR., RICHARD J. SULLIVAN, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 21-112 SHELBY GARIGEN, Defendant-Appellant. _____________________________________ FOR DEFENDANT-APPELLANT: THOMAS J. EOANNOU, Esq., Buffalo, NY. FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY. Appeal from a judgment of the United States District Court for the Western
District of New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that this appeal is DISMISSED.
Shelby Garigen appeals from a judgment of conviction entered on December
31, 2020, following her guilty plea to one charge of access with intent to view
material that contained images of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). The district court sentenced Garigen to thirty-seven
months’ imprisonment, the bottom of the sentencing range provided in her plea
agreement. On appeal, Garigen argues that she received ineffective assistance of
counsel and that her sentence was procedurally unreasonable.
As an initial matter, the government asserts that Garigen’s appeal is barred
by the appellate waiver in her plea agreement. In that agreement, Garigen
“knowingly waive[d] the right to appeal and collaterally attack any component of
a sentence imposed by the [district court] which falls within or is less than the
sentencing range” set out in the agreement, “notwithstanding the manner in which
the [c]ourt determines the sentence.” App. at 73. This Court will find an appellate
waiver “unenforceable only in very limited situations,” including “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. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010) (internal quotation
marks omitted); see United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000)
(stating that we have “upheld waiver provisions even in circumstances where the
sentence was conceivably imposed in an illegal fashion or in violation of the
Guidelines, but yet was still within the range contemplated in the plea
agreement”).
Garigen argues that this Court should decline to enforce her appellate
waiver in light of the government’s alleged misconduct below, which she argues
violated “fundamental tenets of fairness and due process of law.” Garigen Br. at
25. Specifically, Garigen asserts that (1) the parents of a victim (“Victim 1”) made
false and biased statements against Garigen and should not have been allowed to
speak at her sentencing; (2) Victim 1’s father had improper control over the
prosecution of Garigen’s case; and (3) Victim 1’s father was given access to
2 Garigen’s confidential Presentence Investigation Report (“PSR”) and discussed the
contents of her PSR at sentencing.
None of Garigen’s arguments falls within the “very circumscribed”
exceptions to the validity of an appellate waiver. Gomez-Perez, 215 F.3d at 319.
First, even if Victim 1’s parents did not have an express right to speak at Garigen’s
sentencing under the Crime Victims’ Rights Act, 18 U.S.C. § 3771, the court was
certainly within its power to permit them to speak, “[p]rovided that [Garigen]
ha[d] a fair opportunity to respond” – which she did. United States v. Smith, 967
F.3d 198, 216 (2d Cir. 2020) (recognizing that “no limitation shall be placed on the
information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence” (internal quotation
marks and alterations omitted) (quoting 18 U.S.C. § 3661)). Garigen clearly was
free to object or respond to any of the statements that Victim 1’s parents made
during her sentencing, and the district court was permitted to consider all of these
statements as relevant in formulating a sentence.
Second, in asserting that Victim 1’s father “advised the court that he ‘helped
the U.S. Attorney’s Office prosecute this case,’” Garigen Br. at 16, 22, 29, Garigen
3 blatantly mischaracterizes – or at least misconstrues – the record, which reveals
that Victim 1’s father merely expressed gratitude to FBI agents who helped with
the case. See App. at 152 (“I’d like to thank the FBI. . . . I’ve been in contact with
the agents who investigated it and helped the U.S. Attorney’s Office prosecute this
case.”). Indeed, the suggestion that it was Victim 1’s father, as opposed to the FBI
agents, who “helped the U.S. Attorney’s Office prosecute this case” is a distortion
that borders on semantic gamesmanship. Likewise, the contention that Victim 1’s
father professed some “veto power” over the government’s plea offer is not
supported by the record, which merely reflects that the father expressed several
“specific request[s]” to the government, and later the district court, that Garigen
serve jail time. Id. at 158; see Garigen Br. at 30. Finally, Garigen again misinterprets
the record when she asserts that Victim 1’s father had access to her confidential
PSR simply because he acknowledged that the judge had read the PSR, App. at 156
(“I know you’ve read the PSR, Judge”), after the court itself had already referred
to the PSR and adopted the facts therein. 1 Accordingly, we reject Garigen’s
1 Garigen also contends that Victim 1’s father discussed facts from the PSR in his remarks at sentencing, but these facts were also set forth in publicly available documents in Garigen’s case.
4 challenge to the enforceability of her appellate waiver and decline to consider her
appeal as to her sentence.
Garigen also argues that she received ineffective assistance of counsel
“throughout the proceedings, and most particularly prior to and during the
sentencing phase of the prosecution,” Garigen Br. at 31, because her counsel (1)
failed to object after receiving notice that Victim 1’s parents would speak at
sentencing, and (2) did not address the fact that even though federal law prohibits
the receipt of sexual images of 17-year-olds, certain states do not criminalize sexual
relations with 17-year-olds, purportedly creating an “anomaly” in the Sentencing
Guidelines, id. at 28–29. But these arguments are also barred by the appeal waiver
contained in Garigen’s plea agreement. We may consider an ineffective assistance
claim despite the existence of an appellate waiver where “the defendant claims
that the plea agreement was entered into without the effective assistance of
counsel.” United States v. Hernandez, 242 F.3d 110, 113–14 (2d Cir. 2001). But we
have previously declined to address an ineffective assistance claim that “in reality
is challenging the correctness of [a defendant’s] sentence” where the defendant
has entered into a valid plea agreement and waived her right to challenge her
sentence on appeal. United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998)
5 (explaining that “[i]f we were to allow a claim of ineffective assistance of counsel
at sentencing as a means of circumventing plain language in a waiver agreement,
the waiver of appeal provision would be rendered meaningless”).
Although Garigen asserts that some part of her ineffective assistance claim
relates to counsel’s conduct during the “plea phase” of her proceeding, Garigen
Br. at 28, she has pointed to nothing in the record that suggests she received
ineffective assistance of counsel in connection with her guilty plea or that counsel’s
conduct in any way undermined the knowing and voluntary nature of her plea.
Instead, her challenge to the competency of counsel centers on counsel’s
performance in connection with sentencing, which clearly is barred by her
appellate waiver. We therefore decline to address it. Djelevic, 161 F.3d at 107.
Moreover, even if it could be argued that Garigen’s ineffective assistance
claims were not covered by the appeal waiver, her arguments would still fail on
the merits, since she cannot make the requisite showing that her counsel’s
representation “fell below an objective standard of reasonableness.” Parisi v.
United States, 529 F.3d 134, 140 (2d Cir. 2008) (stating that an ineffective assistance
claim requires a defendant to “(1) demonstrate that his counsel’s performance fell
below an objective standard of reasonableness in light of prevailing professional
6 norms; and (2) affirmatively prove prejudice arising from counsel’s allegedly
deficient representation” (internal quotation marks omitted)). As we noted above,
the district court was permitted to hear from Victim 1’s parents at Garigen’s
sentencing, so counsel cannot be faulted for failing to make a meritless legal
argument. Moreover, counsel’s decision to focus on other mitigating factors at
sentencing, rather than pursue a questionable legal argument regarding the
differences between state and federal criminal laws, was certainly within “the
exercise of reasonable professional judgment,” particularly where Garigen has
identified no case law upon which counsel could have relied in making such an
argument. Strickland v. Washington, 466 U.S. 668, 690 (1984).
Accordingly, we DISMISS this appeal.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court