United States v. Montoya

Second Circuit

United States v. Montoya

84 F. App'x 139

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 5, 2004

DocketNo. 02-1723

StatusPublished

This text of 84 F. App'x 139 (United States v. Montoya) 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. Montoya, 84 F. App'x 139 (2d Cir. 2004).

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[140]*140SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the appeal is DISMISSED.

Defendant-appellant Edgar Vinasco appeals from a judgment of conviction entered against him on November 21, 2002 in the United States District Court for the Southern District of New York (Denise L. Cote, Judge). Specifically, Vinasco appeals the district court’s decision to impose a sentence of 87 months’ imprisonment without first granting Vinasco 35 days to review the final pre-sentence report, as required by the former Fed.R.Crim.P. 32(b)(6) (which is now Fed.R.Crim.P. 32(e)(2)).

However, Vinasco’s appeal is foreclosed by his plea agreement, in which he expressly waived his right to appeal any sentence within or below a stipulated guidelines range of 87 to 108 months’ imprisonment. A22. Absent a showing of “extraordinary circumstances,” a waiver of a defendant’s right to appeal must be enforced. See United States v. Yemitan, 70 F.3d 746, 748 (2d Cir.1995). No such extraordinary circumstances having been alleged here, the appeal must be dismissed.

For the reasons set forth above, the appeal is hereby DISMISSED.

The Government has also moved for summary affirmance of the conviction of Edgar Vinasco’s brother, Isaac Vinasco. That motion and Marjorie M. Smith’s motion to be relieved as counsel for Isaac Vinasco pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), are hereby GRANTED.

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[140]*140SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the appeal is DISMISSED.

Defendant-appellant Edgar Vinasco appeals from a judgment of conviction entered against him on November 21, 2002 in the United States District Court for the Southern District of New York (Denise L. Cote, Judge). Specifically, Vinasco appeals the district court’s decision to impose a sentence of 87 months’ imprisonment without first granting Vinasco 35 days to review the final pre-sentence report, as required by the former Fed.R.Crim.P. 32(b)(6) (which is now Fed.R.Crim.P. 32(e)(2)).

However, Vinasco’s appeal is foreclosed by his plea agreement, in which he expressly waived his right to appeal any sentence within or below a stipulated guidelines range of 87 to 108 months’ imprisonment. A22. Absent a showing of “extraordinary circumstances,” a waiver of a defendant’s right to appeal must be enforced. See United States v. Yemitan, 70 F.3d 746, 748 (2d Cir.1995). No such extraordinary circumstances having been alleged here, the appeal must be dismissed.

For the reasons set forth above, the appeal is hereby DISMISSED.

The Government has also moved for summary affirmance of the conviction of Edgar Vinasco’s brother, Isaac Vinasco. That motion and Marjorie M. Smith’s motion to be relieved as counsel for Isaac Vinasco pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967), are hereby GRANTED.

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84 F. App'x 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-montoya-ca2-2004.

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