09-3308-cr
USA v. Nelson


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                              AMENDED 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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 7th day
of April, two thousand eleven.

Present:
         ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
                     Circuit Judges,
         BRIAN M. COGAN,*
                     District Judge.
________________________________________________

UNITED STATES OF AMERICA,

            Appellee,

                   v.                                           No. 09-3308-cr

JAMES NELSON,

         Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                 James M. Branden, Law Office of James M. Branden,
                                         New York, N.Y.
For Appellee:                            Christopher M. Mattei, Assistant United States


        *
          The Honorable Brian M. Cogan, of the United States District Court for the Eastern
District of New York, sitting by designation.
                                           Attorney (Robert M. Spector, Assistant United States
                                           Attorney, of counsel), for David B. Fein, United States
                                           Attorney for the District of Connecticut, New Haven,
                                           CT.


       Appeal from the United States District Court for the District of Connecticut (Droney, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the appeal is DISMISSED.

       Defendant-Appellant James Nelson appeals from a July 14, 2009 judgment of conviction

entered by the United States District Court for the District of Connecticut (Droney, J.). On

September 26, 2008, Nelson pleaded guilty, pursuant to a plea agreement, to one count of

possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B). The plea agreement contained an appeal waiver provision that, in

pertinent part, precludes Nelson from “appeal[ing] or collaterally attack[ing] in any

proceeding . . . the conviction or sentence of imprisonment imposed by the Court if that sentence

does not exceed 137 months’ incarceration.” App. 16. On July 7, 2009, the district court

sentenced Nelson to 110 months of imprisonment, four years of supervised release, and a $100

mandatory special assessment. Nelson appeals from that judgment, principally contending that

the term of imprisonment imposed is substantively unreasonable. We presume the parties’

familiarity with the facts and procedural history of this case.

       On numerous occasions, this court has upheld the validity of appeal waivers, “with the

obvious caveat that such waivers must always be knowingly, voluntarily, and competently

provided by the defendant.” United States v. Gomez-Perez, 

, 318 (2d Cir. 2000);

see also United States v. Arevalo, 

, 98 (2d Cir. 2010) (“Waivers of the right to appeal


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a sentence are presumptively enforceable.”). For the following reasons, we conclude that Nelson

has waived his right to appeal the term of imprisonment that the district court imposed.

       Nelson contends that the waiver he signed does not foreclose his sentencing challenge

because the waiver applies to preclude only an appeal of a “sentence” of 137 months or less,

while his “sentence” included not only a 110-month term of imprisonment, but also a four-year

term of release and a $100 special assessment. “We interpret plea agreements de novo in

accordance with principles of contract law, looking to the parties’ reasonable understanding of

the agreement’s terms and resolving any ambiguities in the defendant’s favor.” United States v.

Stearns, 

, 178 (2d Cir. 2007) (per curiam). Here, it is plain from the language of the

waiver, which was reviewed with Nelson in open court, that the 137-month threshold pertains

only to the incarcerative portion of Nelson’s sentence: he cannot appeal his “sentence of

imprisonment imposed by the Court if that sentence does not exceed 137 months’

incarceration.” App. 16 (emphasis added). Thus, while this waiver would not limit Nelson’s

right to appeal from the supervised release and special assessment components of his sentence,

see United States v. Oladimeji, 

, 156-57 (2d Cir. 2006); United States v.

Cunningham, 

, 117 (2d Cir. 2002), the instant appeal challenges only the 110-

month term of imprisonment, and thus cannot proceed under the terms of the waiver.

       Nelson asserts no other challenge to the validity of his waiver. We note, however, that a

motions panel denied the government’s previous motion to dismiss the appeal, concluding that

there exists a non-frivolous issue as to whether Nelson fully understood the consequences of this

waiver. See 

. As the government identifies in its brief, the

transcript of Nelson’s plea hearing indicates that the district court at one point mischaracterized


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the waiver as barring him from appealing “the sentence of incarceration by the Court that

exceeds 137 months[’] incarceration,” App. 45 (emphasis added), when the waiver in fact applies

to sentences that do not exceed 137 months’ incarceration.1

       After careful review of the record, however, we decline to invalidate the waiver on this

ground. At a prior point in the plea hearing, the Assistant United States Attorney correctly

restated this provision as meaning that Nelson “will not appeal his sentence so long as it does not

exceed 137 months.” App. 39. And immediately after making the apparent misstatement, the

district court accurately described a parallel provision of the appeal waiver, which would have

applied if Nelson had not later decided to object to his classification as a career offender, as

barring any appeal of a sentence “that does not exceed 235 months[’] incarceration.” 

(emphasis added). The written agreement itself makes clear that the appeal waiver applies only

to sentences of imprisonment at or below the stated term of months. In these circumstances, we

detect no meaningful risk that Nelson elected to enter into the plea agreement on the mistaken

understanding that it precluded his ability to appeal a sentence in excess of, but not at or below,

137 months of imprisonment. See United States v. Roitman, 

, 126 (2d Cir. 2001)

(“The District Court’s inadvertent omission of the words ‘or below’ [in describing a provision of

a plea agreement waiving the defendant’s right to appeal a sentence ‘within or below’ the range

of 12 to 18 months’ imprisonment] cannot vitiate the waiver, since it would be absurd to think

that a defendant willing to waive an appeal if sentenced within the range of 12 to 18 months was



       1
         At another point during this hearing, Nelson’s prior counsel described the appeal waiver
as “for any sentence that is 137 or more, over 137 months.” App. 43. This comment also could
be interpreted as suggesting that the waiver applies to bar appeals of sentences of imprisonment
at or above, rather than below, 137 months.

                                                  4
not also willing to waive an appeal if sentenced to a lesser term.”).

       We have considered Nelson’s remaining arguments, including those set forth in his pro

se supplemental brief, and find them to be without merit.2 Accordingly, for the foregoing

reasons, the appeal is hereby DISMISSED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




       2
         In his pro se supplemental brief, Nelson challenges the validity of his guilty plea in light
of the enactment of the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, § 2, 124 Stat.
2372, which reduced sentences for certain offenses involving crack cocaine. However, “because
the FSA took effect . . . after [Nelson] committed his crimes,” the Act has no retroactive effect
on Nelson’s conviction. United States v. Acoff, — F.3d —, 

, at *1 (2d Cir. Feb.
10, 2011) (per curiam) (omission in original) (internal quotation mark omitted).

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