U.S.
v.
Blackmore

United States Court of Appeals, Second CircuitNov 12, 2010
400 Fed. Appx. 583 (2d Cir. 2010)

No. 09-2933-cr.

November 12, 2010.

Appeal from the United States District Court for the Northern District of New York (Sharpe, J.).

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

Steven Y. Yurowitz, New York, NY, for Appellant.

Rajit S. Dosanjh, Assistant United States Attorney (Daniel Hanlon, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

PRESENT: JOSEPH M. MCLAUGHLIN, B.D. PARKER and RICHARD C. WESLEY, Circuit Judges.


SUMMARY ORDER

Defendant-Appellant Anthony B. Blackmore ("Appellant") appeals from a judgment of conviction entered on June 16, 2009, in the United States District Court for the Northern District of New York (Sharpe, J.). Pursuant to a plea agreement, Appellant pleaded guilty to one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). In his plea agreement, Appellant agreed, inter alia, to waive his right to appeal any sentence of 87 months or less. Appellant was sentenced to 70 months' imprisonment. This sentence was at the low end of the applicable Guidelines range. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

Appellant argues that his appeal waiver is void because the district court refused to exercise its discretion under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), to impose a non-Guidelines sentence based on the cocaine base/cocaine powder disparity contained in the Guidelines. We disagree.

Generally, "a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed guideline range is enforceable." United States v. Rosa, 123 F.3d 94, 97 (2d Cir. 1997). In some circumstances, however, a waiver of appellate rights will be 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, thus amounting to an abdication of judicial responsibility subject to mandamus." United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000) (internal citations and quotation marks omitted). These exceptions are circumscribed, however, and 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." Id.

We see no reason on this record to ignore the waiver contained in Appellant's plea agreement. Appellant's sentence is below 87 months and is within the range contemplated by the plea agreement. Further, there is no indication that the waiver was not made knowingly or voluntarily. Finally, contrary to Appellant's contention, the record unambiguously establishes that the district court understood its discretion under Kimbrough to lower Appellant's sentence in light of the crack/powder disparity. The court explicitly chose not to exercise that discretion and went on to conclude that in light of Appellant's conduct and criminal history, a sentence at the low end of the Guidelines range was reasonable. The district court did not treat the Guidelines as mandatory by concluding that it was inappropriate in this instance to exercise the discretion afforded under Kimbrough.

Appellant waived his right to appeal. Consequently, his appeal is barred. We have considered Appellant's other arguments on appeal and find them to be without merit.

For the foregoing reasons, this appeal is DISMISSED.