19-515
United States v. Balinda
                           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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 22nd day of September, two thousand twenty.

        PRESENT: ROBERT D. SACK,
                         RICHARD C. WESLEY,
                         RICHARD J. SULLIVAN,
                                 Circuit Judges.
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        UNITED STATES OF AMERICA,

                           Appellee,

                   v.                                                        No. 19-515-cr

        EDOZIE ONYEGBULE,

                           Defendant,

        ISMAEL BALINDA,

                         Defendant-Appellant.
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      FOR DEFENDANT-APPELLANT:                BRUCE A. BARKET (Danielle
                                              Muscatello, Alex Klein, Donna Aldea,
                                              on the brief), Barket Epstein Kearon
                                              Aldea & LoTurco, LLP, Garden City,
                                              NY.

      FOR APPELLEE:                           MICHAEL K. KROUSE, Assistant
                                              United States Attorney (Karl Metzner,
                                              Assistant United States Attorney, on
                                              the brief), for Audrey Strauss, Acting
                                              United States Attorney for the
                                              Southern District of New York, New
                                              York, NY.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (P. Kevin Castel, J.).

      UPON      DUE     CONSIDERATION,           IT   IS   HEREBY      ORDERED,

ADJUDGED, AND DECREED that this appeal is DISMISSED.

      Defendant-Appellant Ismael Balinda appeals from a judgment of the district

court (Castel, J.) sentencing him principally to 72 months’ imprisonment and three

years of supervised release after he pleaded guilty, pursuant to a plea agreement,

to conspiracy to import and distribute one kilogram or more of heroin and 50

grams or more of methamphetamine. Balinda contends that his sentence must be

vacated and that he must be resentenced before a different judge because the

government breached the plea agreement by “suggesting” during sentencing that

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a two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises

for the purpose of manufacturing or distributing a controlled substance was

warranted. Balinda’s Br. 27. He further maintains that the appeal waiver in the

plea agreement is therefore unenforceable and that the district court clearly erred

in applying the two-level enhancement. Nevertheless, Balinda’s claims fail at the

start since the government did not breach the plea agreement. Accordingly, we

dismiss Balinda’s appeal. We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal, to which we refer only as necessary

to explain our decision.

      “[W]aivers of the right to appeal a sentence are presumptively enforceable.”

United States v. Burden, 

, 51 (2d Cir. 2017) (internal quotation marks

omitted). Allowing a defendant “who has secured the benefits of a plea agreement

and knowingly and voluntarily waived the right to appeal a certain sentence” to

“then appeal the merits of a sentence conforming to the agreement . . . would

render the plea bargaining process and the resulting agreement meaningless.”

United States v. Salcido-Contreras, 

, 53 (2d Cir. 1993). Consequently, we

will decline to enforce an appeal waiver only in limited circumstances. See United

States v. Gomez-Perez, 

, 319 (2d Cir. 2000) (“The[] exceptions to the


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presumption of the enforceability of a waiver . . . occupy a very circumscribed area

of our jurisprudence.”).    We have previously explained that there are four

circumstances in which an appeal waiver may be deemed unenforceable:

      (1) where the waiver was not made knowingly, voluntarily, and
      competently; (2) where the sentence was based on constitutionally
      impermissible factors, such as ethnic, racial or other prohibited biases;
      (3) where the government breached the agreement containing the waiver;
      and (4) where the district court failed to enunciate any rationale for the
      defendant’s sentence.

(internal quotation marks omitted).

      Balinda argues that his appeal waiver is unenforceable because the

government breached the plea agreement by (1) “remain[ing] silent when

Probation recommended [in the presentence investigation report (“PSR”)] a two-

level enhancement pursuant to section 2D1.1(b)(12) of the Guidelines”;

(2) “suggest[ing] that its evidence . . . support[ed] the enhancement” when

expressly questioned by the district court; and (3) taking “no steps” to “repudiate”

the district court’s inquiry into whether a § 2D1.1(b)(12) enhancement was

appropriate. Balinda’s Br. 28.

      We interpret plea agreements “de novo and in accordance with principles of

contract law.”   United States v. Riera, 

, 133 (2d Cir. 2002).       In

determining whether a plea agreement has been breached, we consider “the

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reasonable understanding of the parties as to the terms of the agreement.” United

States v. Colon, 

, 51 (2d Cir. 2000). Given the government’s “advantages

in bargaining power, any ambiguities in the agreement must be resolved in favor

of the defendant.” 

(internal quotation marks omitted). The

government breaches a plea agreement where its “commentary reasonably

appears to seek to influence the court in a manner incompatible with the

agreement . . . notwithstanding formal language of disclaimer.” United States v.

Amico, 

, 167 n.2 (2d Cir. 2005).

      Although Balinda’s plea agreement provided that the government would

not seek “any departure or adjustment pursuant to the Guidelines” that was not

set forth therein, App’x 24, it expressly permitted the government to “answer any

inquiries and to make all appropriate arguments” if the district court

contemplated any “adjustments, departures, or calculations different from those

stipulated to” in the plea agreement

     The government’s conduct at

sentencing fits comfortably within this carve out.      The government merely

responded to the district court’s direct inquiries in accordance with its duty of

candor to the court. Consequently, the government did not breach the plea

agreement.


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      After reviewing the PSR’s recommendation for a two-level enhancement

under § 2D1.1(b)(2), the district court first asked the government whether it

“st[ood] by [its] plea deal” and whether “probation [was] wrong about the

applicability of the enhancement.”

The government responded to the

district court’s questioning, emphasizing that it did “stand behind the plea

agreement” and explaining why it thought that the enhancement was not

“appropriate” in Balinda’s case.

after the district court pressed the

government further about Balinda’s control of the property in question and

inquired whether Balinda “agreed to provide security” for the property that the

government again answered the court’s questions, stating that Balinda did “agree

to provide armed guards.”

When the district court explicitly asked the

government whether it was prepared to tell the court that it could not prove by a

preponderance of the evidence that Balinda maintained a premises for the purpose

of manufacturing a controlled substance, the government answered somewhat

equivocally that it was “not prepared to tell [the court] that.”

Rather than

demonstrating a breach of the plea agreement, this conduct evidences that the

government abided by its commitments under the plea agreement at sentencing.

See 

(determining that the government did not breach a nearly


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identical plea agreement where (1) it merely responded to the district court’s

specific inquiry; (2) the plea agreement’s language permitted the government to

respond to such inquiries; and (3) “the government . . . emphasized that it was not

advocating for an upward departure”).

       Accordingly, because the government did not breach the plea agreement,

the appeal waiver contained therein – through which Balinda agreed not to

challenge any sentence within or below the stipulated guidelines range of 70 to 87

months’ imprisonment – prohibits Balinda from challenging his sentence.

Although Balinda maintains that the district court erred by applying a two-level

enhancement under § 2D1.1(b)(12), such alleged procedural errors are not an

exception to an otherwise valid appeal waiver. See, e.g., 

.   Balinda bargained away the right to appeal a sentence of 72 months’

imprisonment when he entered into the plea agreement, and allowing him to

challenge his sentence now would deprive the government of the benefit of that

agreement.    See United States v. Morgan, 

, 381 (2d Cir. 2004).

Accordingly, we dismiss Balinda’s appeal of his sentence of 72 months’

imprisonment.




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                                *     *     *

     We have considered the remainder of Balinda’s arguments and find them to

be without merit. Accordingly, Balinda’s appeal is DISMISSED.

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




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