21-112 United States v. Garigen

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 28th day of January, two thousand twenty-two. PRESENT: AMALYA L. KEARSE, JOHN M. WALKER, JR., RICHARD J. SULLIVAN, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 21-112 SHELBY GARIGEN, Defendant-Appellant. _____________________________________ FOR DEFENDANT-APPELLANT: THOMAS J. EOANNOU, Esq., Buffalo, NY. FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY. Appeal from a judgment of the United States District Court for the Western

District of New York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that this appeal is DISMISSED.

Shelby Garigen appeals from a judgment of conviction entered on December

31, 2020, following her guilty plea to one charge of access with intent to view

material that contained images of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2). The district court sentenced Garigen to thirty-seven

months’ imprisonment, the bottom of the sentencing range provided in her plea

agreement. On appeal, Garigen argues that she received ineffective assistance of

counsel and that her sentence was procedurally unreasonable.

As an initial matter, the government asserts that Garigen’s appeal is barred

by the appellate waiver in her plea agreement. In that agreement, Garigen

“knowingly waive[d] the right to appeal and collaterally attack any component of

a sentence imposed by the [district court] which falls within or is less than the

sentencing range” set out in the agreement, “notwithstanding the manner in which

the [c]ourt determines the sentence.” App. at 73. This Court will find an appellate

waiver “unenforceable only in very limited situations,” including “when the waiver was not made knowingly, voluntarily, and competently, when the sentence

was imposed based on constitutionally impermissible factors, such as ethnic, racial

or other prohibited biases, when the government breached the plea agreement, or

when the sentencing court failed to enunciate any rationale for the defendant’s

sentence.” United States v. Arevalo,

(2d Cir. 2010) (internal quotation

marks omitted); see United States v. Gomez-Perez,

(2d Cir. 2000)

(stating that we have “upheld waiver provisions even in circumstances where the

sentence was conceivably imposed in an illegal fashion or in violation of the

Guidelines, but yet was still within the range contemplated in the plea

agreement”).

Garigen argues that this Court should decline to enforce her appellate

waiver in light of the government’s alleged misconduct below, which she argues

violated “fundamental tenets of fairness and due process of law.” Garigen Br. at

25. Specifically, Garigen asserts that (1) the parents of a victim (“Victim 1”) made

false and biased statements against Garigen and should not have been allowed to

speak at her sentencing; (2) Victim 1’s father had improper control over the

prosecution of Garigen’s case; and (3) Victim 1’s father was given access to

2 Garigen’s confidential Presentence Investigation Report (“PSR”) and discussed the

contents of her PSR at sentencing.

None of Garigen’s arguments falls within the “very circumscribed”

exceptions to the validity of an appellate waiver. Gomez-Perez,

.

First, even if Victim 1’s parents did not have an express right to speak at Garigen’s

sentencing under the Crime Victims’ Rights Act,

, the court was

certainly within its power to permit them to speak, “[p]rovided that [Garigen]

ha[d] a fair opportunity to respond” – which she did. United States v. Smith,

(2d Cir. 2020) (recognizing that “no limitation shall be placed on the

information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence” (internal quotation

marks and alterations omitted) (quoting

)). Garigen clearly was

free to object or respond to any of the statements that Victim 1’s parents made

during her sentencing, and the district court was permitted to consider all of these

statements as relevant in formulating a sentence.

Second, in asserting that Victim 1’s father “advised the court that he ‘helped

the U.S. Attorney’s Office prosecute this case,’” Garigen Br. at 16, 22, 29, Garigen

3 blatantly mischaracterizes – or at least misconstrues – the record, which reveals

that Victim 1’s father merely expressed gratitude to FBI agents who helped with

the case. See App. at 152 (“I’d like to thank the FBI. . . . I’ve been in contact with

the agents who investigated it and helped the U.S. Attorney’s Office prosecute this

case.”). Indeed, the suggestion that it was Victim 1’s father, as opposed to the FBI

agents, who “helped the U.S. Attorney’s Office prosecute this case” is a distortion

that borders on semantic gamesmanship. Likewise, the contention that Victim 1’s

father professed some “veto power” over the government’s plea offer is not

supported by the record, which merely reflects that the father expressed several

“specific request[s]” to the government, and later the district court, that Garigen

serve jail time.

; see Garigen Br. at 30. Finally, Garigen again misinterprets

the record when she asserts that Victim 1’s father had access to her confidential

PSR simply because he acknowledged that the judge had read the PSR, App. at 156

(“I know you’ve read the PSR, Judge”), after the court itself had already referred

to the PSR and adopted the facts therein. 1 Accordingly, we reject Garigen’s

1 Garigen also contends that Victim 1’s father discussed facts from the PSR in his remarks at sentencing, but these facts were also set forth in publicly available documents in Garigen’s case.

4 challenge to the enforceability of her appellate waiver and decline to consider her

appeal as to her sentence.

Garigen also argues that she received ineffective assistance of counsel

“throughout the proceedings, and most particularly prior to and during the

sentencing phase of the prosecution,” Garigen Br. at 31, because her counsel (1)

failed to object after receiving notice that Victim 1’s parents would speak at

sentencing, and (2) did not address the fact that even though federal law prohibits

the receipt of sexual images of 17-year-olds, certain states do not criminalize sexual

relations with 17-year-olds, purportedly creating an “anomaly” in the Sentencing

Guidelines,

at 28–29. But these arguments are also barred by the appeal waiver

contained in Garigen’s plea agreement. We may consider an ineffective assistance

claim despite the existence of an appellate waiver where “the defendant claims

that the plea agreement was entered into without the effective assistance of

counsel.” United States v. Hernandez,

, 113–14 (2d Cir. 2001). But we

have previously declined to address an ineffective assistance claim that “in reality

is challenging the correctness of [a defendant’s] sentence” where the defendant

has entered into a valid plea agreement and waived her right to challenge her

sentence on appeal. United States v. Djelevic,

(2d Cir. 1998)

5 (explaining that “[i]f we were to allow a claim of ineffective assistance of counsel

at sentencing as a means of circumventing plain language in a waiver agreement,

the waiver of appeal provision would be rendered meaningless”).

Although Garigen asserts that some part of her ineffective assistance claim

relates to counsel’s conduct during the “plea phase” of her proceeding, Garigen

Br. at 28, she has pointed to nothing in the record that suggests she received

ineffective assistance of counsel in connection with her guilty plea or that counsel’s

conduct in any way undermined the knowing and voluntary nature of her plea.

Instead, her challenge to the competency of counsel centers on counsel’s

performance in connection with sentencing, which clearly is barred by her

appellate waiver. We therefore decline to address it. Djelevic,

.

Moreover, even if it could be argued that Garigen’s ineffective assistance

claims were not covered by the appeal waiver, her arguments would still fail on

the merits, since she cannot make the requisite showing that her counsel’s

representation “fell below an objective standard of reasonableness.” Parisi v.

United States,

(2d Cir. 2008) (stating that an ineffective assistance

claim requires a defendant to “(1) demonstrate that his counsel’s performance fell

below an objective standard of reasonableness in light of prevailing professional

6 norms; and (2) affirmatively prove prejudice arising from counsel’s allegedly

deficient representation” (internal quotation marks omitted)). As we noted above,

the district court was permitted to hear from Victim 1’s parents at Garigen’s

sentencing, so counsel cannot be faulted for failing to make a meritless legal

argument. Moreover, counsel’s decision to focus on other mitigating factors at

sentencing, rather than pursue a questionable legal argument regarding the

differences between state and federal criminal laws, was certainly within “the

exercise of reasonable professional judgment,” particularly where Garigen has

identified no case law upon which counsel could have relied in making such an

argument. Strickland v. Washington,

(1984).

Accordingly, we DISMISS this appeal.

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

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