Categories: Second Circuit Court of Appeals Opinions

U.S. v. OLIVERA, 372 Fed.Appx. 174 (2nd Cir. 2010)

UNITED STATES of America, Appellee, v. Jorge OLIVERA, also known as Georgie, also known as George, Defendant-Appellant.

No. 09-0034-cr.United States Court of Appeals, Second Circuit.
April 20, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

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

ON CONSIDERATION WHEREOF, it is hereby ORDERED,ADJUDGED, and DECREED that the appeal isDISMISSED.

Norman P. Effman, Warsaw, NY, for Defendant-Appellant.

Stephan J. Baczynski, Assistant United States Attorney, for Kathleen M. Mehltretter, United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

Present: GUIDO CALABRESI, CHESTER J. STRAUB, ROBERT A. KATZMANN, Circuit Judges.

SUMMARY ORDER
Defendant-appellant Jorge Olivera appeals from a judgment of the United States District Court for the Western District of New York (Skretny, J.), entered December 30, 2008, sentencing Olivera to 168 months in prison, pursuant to a plea agreement, for his role in a heroin-distribution conspiracy. On appeal, Olivera argues that the district court violated principles of due process and abused its discretion in refusing to hold, prior to resentencing, an evidentiary hearing regarding the extent of the assistance that he and his family provided to the government. We assume the parties’ familiarity with the underlying facts and procedural history of the case.

At the outset, the government contends that the plea agreement’s explicit provision waiving Olivera’s right of appeal precludes review by this Court. We agree. To be enforceable, guilty pleas and waivers of the right to appeal must be “knowingly, voluntarily, and competently provided by the defendant.” United States v. Gomez-Perez, 215 F.3d 315, 318 (2d Cir. 2000). Olivera asserts that the waiver in his plea agreement was not knowing because the parties to the agreement entered into it believing that the court, in granting a downward departure, could consider factors other than Olivera’s substantial assistance.

Olivera’s argument is unavailing. There is no indication that the parties had in mind a reduction based on non-assistance considerations. Neither the agreement nor the transcript of the plea allocution mentions factors for downward reduction other than substantial assistance. Moreover, the plea agreement explicitly recognized that any downward departure was left to the discretion of the district court. Thus, upon entering into the agreement, Olivera could have had no settled expectation

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that the court would depart at all, let alone that it would consider factors other than substantial assistance. See United States v. Rosen, 409 F.3d 535, 548 (2d Cir. 2005).

We have considered all of Olivera’s arguments and find them to be without merit. Accordingly, we DISMISS his appeal as waived.

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