19-1695 United States v. Jackson 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 13th day of May, two thousand twenty.

PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, RICHARD J. SULLIVAN, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. No. 19-1695-cr

RAMEL JACKSON, AKA Ruger,

Defendant-Appellant,

GARY DAVIS, AKA Reckless, AKA Poppa, ANDREW BURRELL, AKA Andy, AKA Panda, QUENTIN STARKES, AKA Polo, ANDRE COFIELD, AKA Dre, PATRICK INNIS, AKA Face, MATTHEW COOPER, AKA Matt, JUSTIN COOPER, NAYSEAN CHAVIS, AKA Nate, HASSAN MUHAMMAD, AKA Has, CHIMBA CARLOS, WILLIAM RAY, AKA Will, JEFFREY GOODRIDGE, MICHAEL LAMAR, AKA Dolo, LUIS GOMEZ, KAREEM DAVIS,

Defendants. ∗ ------------------------------------------------------------------

FOR DEFENDANT-APPELLANT: CLINTON W. CALHOUN, III, Calhoun & Lawrence, LLP, White Plains, NY.

FOR APPELLEE: JORDAN ESTES, Assistant United States Attorney (Alexandra Rothman, Karl Metzner, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, 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 (Lorna G. Schofield, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that this appeal is DISMISSED.

Defendant-Appellant Ramel Jackson appeals from a judgment of the district

court (Schofield, J.) sentencing him principally to 110 months’ imprisonment and

∗ The Clerk of Court is respectfully requested to amend the caption as set forth above.

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

agreement, to racketeering conspiracy and conspiracy to distribute and possess

with intent to distribute cocaine base. Jackson contends that the district court

erred in concluding that a downward departure was not appropriate under

U.S.S.G. § 2E1.1 and that a standard condition of supervised release should be

stricken from his amended judgment. Nevertheless, Jackson knowingly and

voluntarily waived his right to appeal his sentence of 110 months’ imprisonment.

Furthermore, the District Court for the Southern District of New York (“SDNY”)

has issued a standing order vacating and eliminating the standard condition for

any defendant sentenced to that condition, thereby mooting Jackson’s claim.

Accordingly, we dismiss Jackson’s appeal.

I. Jackson Waived His Right to Appeal His Sentence

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

United States v. Burden,

(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.”

3 United States v. Salcido-Contreras,

(2d Cir. 1993). We have enforced

appeal waivers “notwithstanding the defendant’s claim that the sentencing court

failed to make certain downward departures prior to sentencing.” United States v.

Riggi,

, 147–48 (2d Cir. 2011).

Consequently, we will decline to enforce an appeal waiver only in limited

circumstances. See United States v. Gomez-Perez,

(2d Cir. 2000)

(“The[] exceptions to the presumption of the enforceability of a waiver . . . occupy

a very circumscribed area of our jurisprudence.”). We have previously

“articulated four grounds on 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.” Burden,

(internal quotation marks omitted).

The appeal waiver contained in Jackson’s plea agreement – in which he

agreed not to challenge any sentence within or below the stipulated guidelines

range of 110 to 137 months’ imprisonment – prohibits him from challenging his

4 sentence. Jackson maintains that the district court erred by misunderstanding its

ability to grant a downward departure and that the case should be remanded so

that the district court can consider whether a departure was warranted, but such

alleged procedural errors are not an exception to an otherwise valid appeal waiver.

See, e.g., Gomez-Perez,

. Jackson bargained away the right to appeal

a sentence of 110 months’ imprisonment when he entered into the plea agreement,

and allowing Jackson to challenge his sentence now would deprive the

government of the benefit of that agreement. See United States v. Morgan,

(2d Cir. 2004). The district court imposed a sentence within the guidelines

range stipulated to by the parties, and that sentence falls within the appeal waiver

that Jackson negotiated as part of his plea agreement.

Jackson provides us with no reason to doubt that he knowingly, voluntarily,

and competently waived his right to appeal. 1 During his plea allocution, Jackson

affirmed under oath that he was aware of and understood the provision restricting

his ability to appeal his sentence. As for the other grounds on which an appeal

1Jackson asserts for the first time in his reply brief that “there is a significant question as to whether [his] [appeal] . . . waiver . . . was knowing, voluntary and competent.” Reply Br. at 4. By failing to articulate this contention in his opening brief, Jackson has waived it. See Norton v. Sam’s Club,

(2d Cir. 1998).

5 waiver may be deemed unenforceable, Jackson advances no facts or arguments

that undermine the validity of his plea agreement. Accordingly, we dismiss

Jackson’s appeal of his sentence of 110 months’ imprisonment.

II. The SDNY’s Standing Order Moots Jackson’s Standard Condition Claim

Jackson next maintains that Standard Condition No. 12 – which states that

“[i]f the probation officer determines . . . that [Jackson] pose[s] a risk to another

person . . . ,” the probation officer “may require [Jackson] to notify the person

about the risk,” App’x at 102 – must be stricken from his conditions of supervised

release. This claim is moot and must be dismissed. See United States v. Juvenile

Male,

, 936–37 (2011) (determining that defendant’s challenge to

supervised release condition he was no longer subject to was moot); see also United

States v. Doe #1, No. 18-1590,

, at *2 (2d Cir. Apr. 27, 2020) (finding

that the same district-wide standing order at issue here rendered appellants’

claims related to the standard condition moot). Although Jackson is correct that

we invalidated Standard Condition No. 12 in United States v. Boles,

(2d

Cir. 2019), the SDNY has addressed our mandate by issuing a standing order that

effectively rescinded Standard Condition No. 12. See Second Amended Standing

Order M10-468, In re Vacatur of Standard Condition of Supervision Pertaining to Third

6 Party Risk, No. 19-mc-218 (CM) (S.D.N.Y. July 1, 2019), ECF No. 3. That standing

order explained that it was the SDNY’s intention for defendants to be “relieved of

[Standard Condition No. 12] immediately and without the need for motion

practice or other judicial proceedings” and modified “any and all judgments of

conviction” that had imposed Standard Condition No. 12 “by vacating and

eliminating therefrom” that condition. Id. at 1. It further ordered that “any

defendant who was sentenced subject to said condition [was] immediately and

permanently relieved from said condition.” Id. The standing order did not replace

the vacated condition with a revised condition. Id. at 2.

Jackson has thus already received the relief he seeks, since Standard

Condition No. 12 has been “vacat[ed] and eliminat[ed]” from his judgment.

Accordingly, his appeal of that condition is dismissed as moot.

* * *

For the foregoing reasons, Jackson’s appeal is DISMISSED.

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

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