Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2002

USA v. Cupak
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2628




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Recommended Citation
"USA v. Cupak" (2002). 2002 Decisions. Paper 674.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/674


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                                           NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                     ___________

                     No. 01-2628
                     ___________


                 MICHAEL CUPAK,
                            Appellant

                           v.

           UNITED STATES OF AMERICA

_______________________________________________

     On Appeal from the United States District Court
            for the District of New Jersey
           D.C. Criminal No. 00-cr-00063
          (Honorable Harold A. Ackerman)
               ___________________


     Submitted Pursuant to Third Circuit LAR 34.1(a)
                     June 4, 2002

  Before: SCIRICA, BARRY and WEIS, Circuit Judges

               (Filed: October 28, 2002)

                 __________________

              OPINION OF THE COURT
                __________________
SCIRICA, Circuit Judge.

        The issue in this sentencing appeal is whether the District Court properly sentenced

Michael Cupak pursuant to this Court’s January 12, 2001 remand order for resentencing.

Cupak contends the District Court committed plain error under Federal Rule of Criminal

Procedure 52(b) by: (1) miscalculating the loss amount and applying a three-level

enhancement under U.S.S.G. §§ 2B3.2(b)(2) and 2B3.1(b)(7)(D); (2) by not considering the

victim’s conduct and provocation as a basis for departure under U.S.S.G. § 2X1.1; (3) by

failing to consider his heart disease as grounds for downward departure under U.S.S.G. §

5H1.4; and (4) by failing to apply the Koon1 standard as grounds for downward departure

under U.S.S.G. § 5K2.0. Because we hold Cupak voluntarily waived his right to appeal any

offense level computation equal to or lower than 20 by the express terms of his plea

agreement, his claim of plain error must fail.

                                                      I.

        Michael Cupak was charged in a two-count information with extortion by threat of

physical violence and conducting an illegal gambling business in violation of 18 U.S.C. §§

1951 and 1955. On February 3, 2000, Cupak pled guilty to both counts under a plea

agreement that set forth specific stipulations, including: (1) the only permissible

sentencing departures are those established in the plea agreement; (2) under U.S.S.G. §




  1
   Koon v. United States, 

(1996).

                                                      2
1B1.3, relevant conduct includes a telephone threat made by Cupak to “Edward Leftler,”2 a

fictitious person, regarding gambling debts owed to Cupak; and (3) a voluntary waiver of the

right to file any appeal or collateral attack that challenges the sentencing court’s imposition

of an offense level equal to or less than 20. Adopting the factual findings and guideline

range of the presentence report, the District Court imposed concurrent sentences of 49

months on Count I and 16 months on Count II. The presentence report recommended a

total offense level of 22 because the probation officer determined (erroneously) that the

relevant conduct stipulation “specifically establish[ed] the commission of additional

offense(s) [and] shall be treated as if the defendant had been convicted of additional

count(s) charging those offense(s).” U.S.S.G. § 1B1.2(c).

        Cupak appealed contending the District Court committed plain error by treating the

relevant conduct stipulation3 as establishing an additional offense under U.S.S.G. §

1B1.2(c), resulting in an inappropriate two-level enhancement. The two-level enhancement

raising the offense level from 20 to 22 liberated Cupak from the waiver of his right to

appeal. The government agreed with Cupak and filed a motion for summary remand. We



  2
    Bradley Deaver placed bets with Cupak. In 1999, Cupak “cut off” Deaver because
Deaver was in debt to Cupak for approximately $200,000. After being cut off, Deaver
created a fictitious person (Edward Leftler) in order to continue his betting. Betting under
the name of Leftler, Deaver lost $400,000. Deaver reported these events to the FBI.
  3
     Paragraph 4 of the Plea Agreement states “[p]ursuant to [U.S.S.G.] §1B1.3, relevant
conduct includes a threat made over the telephone by Michael Cupak to Edward Leftler, a
fictitious person, in connection with gambling debts owed to his (Cupak’s) gambling
operation. The parties have not agreed as to the effect this relevant conduct has on Michael
Cupak’s guideline level.”

                                                      3
granted the government’s motion for summary remand and requested the District Court

resentence Cupak within the appropriate 33 to 41 month guideline range. United States v.

Cupak, No. 00-2007, N.J. 00-cr-00063 (3d Cir. Jan. 12, 2001). At the June 2001

resentencing hearing, the District Court imposed concurrent sentences of 41 months of

imprisonment on Count I (under an offense level of 20) and 16 months on Count II. This

appeal followed.

                                                    II.

        A defendant who has entered into a guilty plea agreement may not ordinarily object

to its stipulations on appeal. See United States v. Khattak, 

, 563 (3d Cir.

2001) (holding that knowing and voluntary waiver of right to appeal is valid); United States

v. Rodia, 

, 469 (3d Cir. 1999) (stating defendant “did not preserve his right to

appeal by entering a conditional guilty plea”); United States v. Mastrangelo, 

,

294 (3d Cir. 1999) (observing that defendant’s agreement to stipulation in plea agreement

on informed advice of counsel ordinarily precludes objection on appeal); United States v.

Cianci, 

, 109 (3d Cir. 1998) (prohibiting defendant from reneging on

stipulation in guilty plea agreement providing for two-level upward adjustment). Because

Cupak’s sentence on remand falls within the limit stipulated to in the plea agreement, he is

barred from challenging the District Court’s application of the Sentencing Guidelines on

any grounds. Accordingly, we will not review Cupak’s allegations of error.

                                                   III.




                                                    4
        Cupak is bound by the stipulation incorporated into his plea agreement. He has

waived his right to appeal a sentence based on the imposition of any offense level equal to

or less than 20. Thus, his appeal will be dismissed.




                                                       5
TO THE CLERK:

          Please file the foregoing opinion.




                                               /s/ Anthony J. Scirica
                                                    Circuit Judge