United States v. Walker

Opinion

22-1802-cr United States v. Walker

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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 18th day of September, two thousand twenty-three. 4 5 PRESENT: REENA RAGGI, 6 RAYMOND J. LOHIER, JR., 7 SUSAN L. CARNEY, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 22-1802-cr 15 16 JAQUAN WALKER, 17 18 Defendant-Appellant. 19 ------------------------------------------------------------------

1 FOR DEFENDANT-APPELLANT: James P. Egan, Assistant 2 Federal Public Defender, 3 Northern District of New York, 4 Syracuse, NY 5 6 FOR APPELLEE: Steven D. Clymer, Assistant 7 United States Attorney, for 8 Carla B. Freedman, United 9 States Attorney for the 10 Northern District of New York, 11 Syracuse, NY

12 Appeal from a judgment of the United States District Court for the 13 Northern District of New York (Lawrence E. Kahn, J.). 14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 15 AND DECREED that the appeal is DISMISSED. 16 Jaquan Walker appeals from an August 12, 2022 judgment of conviction 17 entered by the District Court (Kahn, J.) upon his plea of guilty, pursuant to a plea 18 agreement, to a single count of being a felon in possession of a firearm in 19 violation of 18 U.S.C. §§ 922(g)(1),924(a)(2). Under the plea agreement, Walker 20 waived his right to appeal “[a]ny sentence to a term of imprisonment of 46 21 months or less.” App’x 17. The District Court sentenced Walker principally to a 22 term of 44 months’ imprisonment after applying a four-level enhancement under 23 U.S.S.G. § 2K2.1(b)(6)(B) for possessing the firearm in connection with another

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1 felony offense. On appeal, Walker challenges his sentence as procedurally 2 unreasonable, arguing that the District Court’s application of the four-level 3 enhancement was error. We assume the parties’ familiarity with the underlying 4 facts and the record of prior proceedings, to which we refer only as necessary to 5 explain our decision to dismiss the appeal. 6 “This Court has repeatedly held that a knowing and voluntary waiver of 7 the right to appeal a sentence is presumptively enforceable.” United States v. 8 Ojeda, 946 F.3d 622, 629 (2d Cir. 2020). Walker argues that the appeal waiver in 9 his plea agreement was not knowing and voluntary because the District Court 10 “failed to inform Walker (fully or at all) that he was waiving his right to appeal 11 his sentence,” as the Government acknowledges is required under Rule 12 11(b)(1)(N) of the Federal Rules of Criminal Procedure. See Appellant’s Br. 13. 13 Because Walker did not object in the District Court, we review for plain error. 14 See United States v. Cook, 722 F.3d 477, 482 (2d Cir. 2013). 15 We conclude that Walker has failed to satisfy the plain error standard. 16 Specifically, Walker fails to show that any error “affected substantial rights and 17 that there is a reasonable probability that, but for the error, he would not have

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1 entered the plea.” United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) 2 (quotation marks omitted); see United States v. Pattee, 820 F.3d 496, 503 (2d Cir. 3 2016) (“[D]eviations from Rule 11 will not warrant appellate relief when the 4 defendant’s ‘substantial rights’ have not been affected.”). The Government 5 acknowledges that the District Court did not itself “inform the defendant of, and 6 determine that the defendant understands,” the appeal waiver, as required by 7 Rule 11(b)(1)(N). See Appellee’s Br. 15. That omission, however, does not here 8 warrant relief from judgment because Walker has not argued that any error 9 prejudicially affected his substantial rights. To the contrary, Walker pleaded 10 guilty after the Government stated in open court that “the waiver of appeal is set 11 at 46 months,” App’x 43, and after Walker affirmed both that his attorneys 12 explained “what was just said by the US Attorney,” that is, “the guidelines, the 13 sentencing possibilities,” and that he had “read [the plea agreement], 14 underst[ood] it, and ha[d] it explained to [him] by [his] attorneys,” App’x 45. 15 Accordingly, we conclude that the appellate waiver is enforceable. 1 See Cook, 722

1 We note that this Court has never squarely held in a precedential opinion that a district court’s failure to comply with Rule 11(b)(1)(N) automatically renders an appeal waiver in a plea agreement unknowing or involuntary. Nevertheless, district courts are

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1 F.3d at 482 (enforcing appellate waiver on plain error review where prosecutor 2 stated the terms of the waiver on the record and defendant confirmed his 3 understanding). 4 We also reject Walker’s alternative argument that the appellate waiver in 5 his plea agreement “does not cover any guideline application” or bar challenges 6 to his sentence based on “procedural error[s] affecting how the district court 7 arrived at the selected sentence.” Appellant’s Br. 13. While appeal waivers “[do] 8 not relieve the District Court of its responsibility to follow the procedural 9 requirements related to the imposition of a sentence,” they “do[] preclude this 10 Court from correcting the errors alleged to have occurred below.” United States 11 v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011). 12 Because the appeal waiver is enforceable and bars Walker’s challenge to 13 the District Court’s application of the Guidelines enhancement, we dismiss

required to “inform the defendant of, and determine that the defendant understands,”

the appeal waiver. FED. R. CRIM. P. 11(b)(1); see Pattee, 820 F.3d at 503 (“[D]istrict court judges are required to adhere strictly to Rule 11’s requirements.”). And as we have “repeatedly [] advised,” “[t]echnical errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas, which covers all of the required information.” Pattee, 820 F.3d at 503.

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1 Walker’s appeal. See United States v. Gomez-Perez, 215 F.3d 315, 321 (2d Cir. 2000). 2 For the foregoing reasons, the appeal is DISMISSED.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court