21-2607 United States v. Moody

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 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 25th day of March, two thousand twenty-four.

PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY, ALISON J. NATHAN, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. No. 21-2607

Andrew Moody, AKA J. R.,

Defendant-Appellant. _____________________________________ FOR DEFENDANT-APPELLANT: ANTHONY L. RICCO (Steven Z. Legon, on the brief), New York, NY.

FOR APPELLEE: ROBERT B. SOBELMAN (Stephen J. Ritchin, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from judgments of the United States District Court for the Southern

District of New York (Berman, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the appeal is DISMISSED in part and the

judgment of the district court in Case 10-cr-1160 is VACATED and REMANDED

for resentencing.

Defendant-Appellant Andrew Moody appeals from judgments entered on

October 6, 2021. In 2011, Moody was convicted in Case 10-cr-1160 for possession

of a firearm in furtherance of a drug trafficking crime, in violation of

(c), for which he was sentenced to five years’ imprisonment and five years of

2 supervised release. He began his term of supervised release in June of 2015. While

still serving his supervised release term, Moody was arrested for operating a drug

trafficking organization out of a townhouse in the Bronx, New York. Moody was

charged with a five-count indictment in Case 19-cr-112 and for violating his

supervised release terms in Case 10-cr-1160. Upon the government’s request, Case

10-cr-1160 was reassigned to allow the same district court judge to preside over

both cases, because the charges “ar[o]se from the same facts.” Case No. 10-cr-1160,

Dkt. No. 79.

On October 29, 2019, pursuant to a plea agreement containing an appeal

waiver, Moody pled guilty in Case 19-cr-112 to one count of participating in a

conspiracy to distribute (1) 280 grams and more of cocaine base, (2) heroin, and

(3) marijuana, in violation of

(b)(1)(A), (C), and 846. For the same

conduct, Moody also pled guilty, in Case 10-cr-1160, to violating his previously

imposed terms of supervised release. The district court accepted Moody’s guilty

pleas in both cases during the same hearing on November 12, 2019.

On October 6, 2021, Moody was sentenced by the district court in both cases

during the same hearing. Moody was sentenced in Case 19-cr-112 to 180 months’

3 imprisonment for participating in a narcotics conspiracy and in Case 10-cr-1160 to

50 months’ imprisonment for violating his supervised release terms, to run

consecutively. The district court also imposed five-year terms of supervised

release in both cases, to run concurrently. The transcript of the joint sentencing

hearing was entered in the docket only in Case 19-cr-112, although a minute entry

was made in both dockets. Moody filed a timely notice of appeal from the

judgment entered in Case 19-cr-112. That judgment referenced the sentence

imposed in Case 10-cr-1160.

On appeal, Moody argues that the district court’s combined 230-month

sentence is substantively unreasonable. 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.

I. Narcotics Conspiracy (19-cr-112)

We conclude that Moody’s challenge against the 180-month sentence

imposed in Case 19-cr-112 for participating in a narcotics conspiracy is barred by

his appeal waiver. Through his appeal waiver, Moody waived his right to “file a

direct appeal . . . of any sentence within or below the Stipulated Guidelines Range

4 of 360 months’ to life imprisonment” for his narcotics conspiracy conviction.

App’x at 28. “Waivers of the right to appeal a sentence are presumptively

enforceable,” United States v. Arevalo,

(2d Cir. 2010), and Moody’s

appeal waiver is not unenforceable merely because he thinks the 180-month

sentence “is so far beyond” the 120-month statutory minimum that he hoped to

receive. See Decl. in Opp. to Mot. to Dismiss at 5. No recognized exception to the

enforceability of an appeal waiver applies here. See Arevalo,

.

Accordingly, the appeal waiver bars us from considering Moody’s challenge

to his narcotics conspiracy sentence.

II. Supervised Release Violation (10-cr-1160)

Moody also challenges the 50-month sentence imposed by the district court

for violating his supervised release terms in Case 10-cr-1160.

As a threshold matter, the government argues that we lack jurisdiction to

review this challenge because Moody did not file a notice of appeal from the

judgment in Case 10-cr-1160, which imposed the sentence of 50 months for

violating his terms of supervised release. We disagree and conclude that Moody’s

notice of appeal is sufficient to appeal his sentence for the supervised release

5 violation.

Federal Rule of Appellate Procedure 3(c) provides that “[t]he notice of

appeal must . . . designate the judgment—or the appealable order—from which

the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). While Rule 3 imposes a

jurisdictional requirement, “it is well settled that courts should apply a liberal

interpretation to that requirement.” Elliott v. City of Hartford,

(2d

Cir. 2016) (quotation marks omitted). Therefore, we “take the parties’ intentions

into account when construing a notice of appeal and will find jurisdiction when

the intent to appeal from a decision is clear on the face of, or can be inferred from,

the notice of appeal.” United States v. White,

, 97 n.29 (2d Cir. 2021)

(cleaned up).

Under the circumstances here, we conclude that it “can be inferred from”

Moody’s notice of appeal that he intended to appeal both his sentence for his

supervised release violation in Case 10-cr-1160 as well as his sentence in Case 19-

cr-112. See

As the government has acknowledged, both sentences arose from

the same set of facts. The cases were both assigned to Judge Berman so that he

could preside over both charges. Moody’s pleas in both cases were accepted

6 during the same hearing, and Moody was sentenced in both cases during the same

hearing. Although Moody’s notice of appeal references only the judgment entered

in Case 19-cr-112, that judgment expressly referenced the 50-month term of

imprisonment and 5-year term of supervised release imposed in Case 10-cr-1160.

The notice of appeal also provided that he was appealing a judgment entered on

October 6, 2021, which could refer to either case as both judgments were entered

that day. Moreover, the government does not allege any prejudice caused by the

technical mistake in the notice of appeal. See Man Ferrostaal, Inc. v. M/V Akili,

, 82 n.4 (2d Cir. 2012). We therefore conclude that we have appellate

jurisdiction over Moody’s challenge of his sentence for violating supervised

release. 1

However, we reject the merits of Moody’s argument that his sentence is

substantively unreasonable. Contrary to Moody’s contentions, the sentencing

court expressly considered the relevant mitigating factors by acknowledging

Moody’s difficult upbringing, the letters of support from his family and friends,

1The Seventh Circuit has reached the same conclusion in a case involving similar facts. United States v. Taylor,

, 422–24 (7th Cir. 2010).

7 his disciplinary record during incarceration, and his participation in educational

classes during his incarceration. Moody’s disagreement with the district court’s

weighing of these factors does not render his sentence substantively unreasonable.

See United States v. Broxmeyer,

(2d Cir. 2012). 2

We do, however, agree with the government that the district court

committed plain error by reimposing a five-year term of supervised release

because it exceeds the statutory maximum. See United States v. Cadet,

(2d Cir. 2011) (“[A] sentence that exceeds the statutory maximum qualifies as

plain error.”). The district court’s imposition of a new term of supervised release

following revocation is governed by

(h), which provides that the

new term “shall not exceed the term of supervised release authorized by statute

for the offense that resulted in the original term of supervised release, less any

2 In his reply brief, Moody also argues that the district court’s failure to impose concurrent sentences was substantively unreasonable. Because this argument was not raised in Moody’s opening brief, it is waived. See United States v. Yousef,

, 115–16 (2d Cir. 2003). But even if not waived, the argument lacks merit. While consecutive terms are not statutorily mandated, nothing in the record suggests that the sentencing judge misunderstood his discretion to impose the sentences concurrently, rather than consecutively. In the absence of record evidence suggesting otherwise, we “presume that the district court understands the extent of its sentencing authority.” United States v. Silleg,

(2d Cir. 2002).

8 term of imprisonment that was imposed upon revocation of supervised release.”

(h).

Here, the maximum term of supervised release authorized for possession of

a firearm in furtherance of drug trafficking—the underlying offense that resulted

in Moody’s original supervised release—was five years, or 60 months. See

(c)(1)(A)(i), 3559(a)(1), 3583(b)(1). Upon revocation of supervised

release, the district court imposed a 50-month term of imprisonment, meaning that

it could impose a new term of supervised release no longer than 10 months. The

60-month term of supervised release imposed by the district court is therefore 50

months above the statutory maximum.

Accordingly, we remand for resentencing for Moody’s supervised release

violation. We do so consistent with the government’s request that this Court

remand for limited resentencing of the new term of supervised release, as Moody

makes no request for de novo resentencing. See United States v. Malki,

(2d Cir. 2013) (“When we overturn a sentence without vacating one or more

underlying convictions and remand for resentencing, the default rule is that the

remand is for limited, and not de novo, resentencing.” (quotation marks omitted)).

9 * * *

Accordingly, we GRANT in part the government’s motion to dismiss the

appeal as to Moody’s challenge to his sentence imposed in Case 19-cr-1160. We

VACATE and REMAND for resentencing as to the new term of supervised release

imposed in Case 10-cr-1160.

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

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