16-0403
     United States v. Byrd

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                                SUMMARY ORDER
 5
 6   RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
 8   APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
 9   ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10   OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
11   ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13        At a stated term of the United States Court of Appeals for
14   the Second Circuit, held at the Thurgood Marshall United States
15   Courthouse, 40 Foley Square, in the City of New York, on the
16   12th day of January, two thousand seventeen.
17
18   PRESENT: DENNIS JACOBS,
19            SUSAN L. CARNEY,
20                          Circuit Judges,
21            KATHERINE POLK FAILLA,
22                          District Judge.*
23
24   - - - - - - - - - - - - - - - - - - - -X
25
26   United States of America,
27            Appellee,
28
29                -v.-                                           16-0403
30
31   Courtney Byrd, AKA Buck,
32            Defendant-Appellant.
33
34
35   - - - - - - - - - - - - - - - - - - - -X
36

          *    Judge Katherine Polk Failla of the United States
     District Court for the Southern District of New York, sitting
     by designation.
                                                1
 1   FOR APPELLANT:               JONATHAN J. EINHORN, Law Office of
 2                                Jonathan J. Einhorn, New Haven, CT.
 3
 4   FOR APPELLEE:                MICHAEL J. GUSTAFSON, Marc H.
 5                                Silverman (of counsel), Assistant
 6                                United States Attorneys, for
 7                                Deirdre M. Daly, United States
 8                                Attorney for the District of
 9                                Connecticut, New Haven, CT.
10
11        Appeal from a judgment of the United States District Court
12   for the District of Connecticut (Shea, J.).
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
14   DECREED that the judgment of the district court be AFFIRMED.
15
16        Courtney Byrd pleaded guilty to possession with intent to
17   distribute and distribution of cocaine base in violation of 21
18   U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The written plea
19   agreement calculated a Sentencing Guidelines range of 46 to 57
20   months; but that calculation turned out to be incorrect. The
21   district court (Shea, J.) calculated a Guidelines range of 92
22   to 115 months and sentenced Byrd principally to 72 months of
23   imprisonment. Byrd does not dispute that the calculation in his
24   plea agreement was incorrect or that the district judge
25   calculated the range correctly; nor does he argue that the judge
26   committed any procedural error or that 72 months is substantively
27   unreasonable. Rather, he argues that it was error for the judge
28   not to honor the range he bargained for. We disagree.
29        The plea agreement expressly warned that the anticipated
30   Guidelines range was not final, that the court would not be bound
31   by the calculation in the agreement, and that Byrd could receive
32   a longer sentence: “The defendant understands that the Court
33   . . . is not bound by this plea agreement. The defendant agrees
34   that the Sentencing Guidelines determinations will be made by
35   the Court . . . . The defendant further understands that he has
36   no right to withdraw his guilty plea if his sentence or the
37   Guideline application is other than he anticipated, including
38   if the sentence is outside any of the ranges set forth in this
39   agreement.” Def.’s App. 16.

40        The district judge also repeatedly warned Byrd at the plea
41   hearing that “nobody . . . knows today what your sentence is

                                    2
 1   going to be,” Gov.’s App. 20, and that his sentence “could be
 2   increased up to the statutory maximum for a variety of reasons.”
 3   

One example adduced by the district judge (which
 4   turned out to be true) was that Byrd’s criminal history could
 5   be more serious than the parties anticipated. See 

 6   Byrd acknowledged this possibility and affirmed that he
 7   understood.

 8        We have long held that district courts have the discretion
 9   to give effect to Guidelines calculations in plea agreements
10   that result in downward departure from the correct Guidelines
11   range. See United States v. Fernandez, 

, 1145 (2d
12   Cir. 1989). Byrd’s position is that district courts should have
13   the affirmative obligation to give effect to such calculations.
14   We find no support for that position in the law. In essence,
15   Byrd makes a policy argument that the risk of surprise sentences
16   will discourage the plea bargaining on which the criminal justice
17   system relies. Even were that proposition to be valid (a point
18   we do not decide today), we are necessarily confined by the scope
19   of permissible review, and “a district court’s decision not to
20   depart from the Guidelines is generally unreviewable, unless
21   it misunderstood its authority to do so.” United States v.
22   Robinson, 

, 201 (2d Cir. 2015). The same must be
23   true of a district court’s decision, such as in this case, to
24   depart from the Guidelines by a lesser degree than the defendant
25   had hoped or had reason to expect.
26        We find no procedural or substantive error in Byrd’s
27   sentence (and Byrd argues for none). It was within the district
28   judge’s discretion to impose a sentence above what was mistakenly
29   anticipated in the plea agreement.

30        Accordingly, we hereby AFFIRM the judgment of the district
31   court.

32                                FOR THE COURT:
33                                CATHERINE O’HAGAN WOLFE, CLERK




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