24-2874 United States v. Bland 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 23rd day of December, two thousand twenty-five.

PRESENT: ROBERT D. SACK, MYRNA PÉREZ, Circuit Judges, VINCENT L. BRICCETTI, District Judge. * ________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 24-2874

SHATIQUE BLAND, AKA SIR.FLOCC,

Defendant-Appellant. ________________________________________

* Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York, sitting by designation.

1 FOR DEFENDANT-APPELLANT: DARRELL FIELDS, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY.

FOR APPELLEE: THOMAS JOHN WRIGHT (Olga I. Zverovich, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, NY.

Appeal from an October 22, 2024, judgment of the United States District Court for

the Southern District of New York (Kaplan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

Defendant-Appellant Shatique Bland appeals from a judgment of the United

States District Court for the Southern District of New York, entered on October 22, 2024,

sentencing him principally to sixty months’ imprisonment. While selling marijuana

outside of bodegas in the Bronx, Bland was seen on surveillance video storing a loaded

firearm inside a bodega. Bland was arrested and charged with three counts: possessing

a firearm as a person with a felony conviction; possessing with intent to distribute

marijuana; and using and carrying a firearm in furtherance of a drug trafficking crime.

He pled guilty to the first charge—possessing a firearm as a person with a felony

conviction in violation of

(g)(1)—as part of a plea agreement with the

Government, which agreed to dismiss the remainder of the charges. The plea agreement

stipulated that the applicable range under the Sentencing Guidelines was fifty-one to

2 sixty-three months’ imprisonment, and further stipulated that the parties “will not

suggest in any way that the Probation Office or the Court consider a sentence outside of

the Stipulated Guidelines Range.” App’x at 49.

Bland now appeals his sentence, claiming that the Government breached the plea

agreement and caused the District Court to impose a sentence based on improper

considerations. We affirm because there is nothing in the record to suggest that the

District Court was affected by the Government’s sentencing arguments at issue.

I. Scope and Standard of Review

This appeal squarely implicates the plea agreement’s appellate waiver: Bland

agreed that he “will not file a direct appeal or otherwise challenge . . . any sentence within

or below the Stipulated Guidelines Range of 51 to 63 months’ imprisonment.” App’x at

50. “We have long held that ‘[w]aivers of the right to appeal a sentence are presumptively

enforceable.’” United States v. Burden,

(2d Cir. 2017) (quoting United States

v. Arevalo,

(2d Cir. 2010)). If the appellate waiver is enforceable, this appeal

must be dismissed. See, e.g., United States v. Borden,

(2d Cir. 2021).

Despite the presumption, we have recognized five circumstances where such

waivers will not be enforced. The two relevant here are “where the government breached

the agreement containing the waiver,” and “where the sentence was based on

constitutionally impermissible factors, such as ethnic, racial[,] or other prohibited biases.”

Cook v. United States,

(2d Cir. 2023) (alteration in original) (quoting

3 Burden,

). If either circumstance is present, then this appeal is not barred by

the plea agreement’s appellate waiver. Since this threshold inquiry necessarily overlaps

with the merits of Bland’s challenges to his sentence, we consider those challenges here.

A. Standard of Review for Breach of Plea Agreement

“We review a plea agreement in accordance with principles of contract law and

look to what the parties reasonably understood to be the terms of the agreement to

determine whether a breach has occurred.” United States v. Helm,

(2d Cir.

2023) (quoting United States v. Sealed Defendant One,

(2d Cir. 2022)).

“[W]e construe plea agreements strictly against the government and do not ‘hesitate to

scrutinize the government’s conduct to ensure that it comports with the highest standard

of fairness.’” United States v. Vaval,

(2d Cir. 2005) (quoting United States

v. Lawlor,

(2d Cir. 1999)).

“An argument that the government breached a plea agreement is reviewed for

plain error if the defendant failed to object in the district court.” United States v. Rivera,

(2d Cir. 2024). Bland concedes that he did not object to the

Government’s conduct at sentencing. Appellant’s Br. 24. We thus deploy plain error

review. “To establish plain error, a defendant must demonstrate: (1) error, (2) that is

plain, and (3) that affects substantial rights.” United States v. Taylor,

(2d

Cir. 2020) (quoting United States v. Bleau,

(2d Cir. 2019) (per curiam)). But

even “[i]f all three conditions are met,” we would “exercise our discretion to rectify this

4 forfeited error only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.”

(quoting Bleau,

). Therefore, while

a finding that the Government breached a plea agreement is error, that finding “does not

end the analysis” for purposes of an unpreserved objection, because the “resulting error

must also be plain and affect substantial rights.” Rivera,

.

B. Standard of Review for Consideration of Impermissible Factor

Separately, “[w]e review sentences on appeal only for ‘reasonableness,’” which

includes a procedural component and a substantive component. See United States v. Park,

, 196–97 (2d Cir. 2014). “Whether a sentence satisfies the objectives

enumerated in . . .

(a)—a substantive inquiry—depends upon the

explanation given by the District Court pursuant to

(c)—a procedural

requirement.”

Where a defendant failed to raise a procedural unreasonableness

challenge at sentencing, we likewise review for plain error. See United States v.

Verkhoglyad,

(2d Cir. 2008) (citing United States v. Villafuerte,

,

208–11 (2d Cir. 2007)).

However, “[w]e have not decided whether plain error review applies to an

unpreserved challenge to the substantive reasonableness of a sentence.” United States v.

Thavaraja,

, 258 n.4 (2d Cir. 2014); see Rivera,

(finding

sentencing challenges unpreserved and “assuming review under an abuse-of-discretion

standard” for the substantive reasonableness analysis). What is clear is that “[o]ur review

5 for substantive unreasonableness is ‘particularly deferential.’” Thavaraja,

(quoting United States v. Broxmeyer,

(2d Cir. 2012)). “The standard thus

‘amounts to review for abuse of discretion.’” See United States v. Martinez,

(2d Cir. 2021) (quoting United States v. Cavera,

(2d Cir. 2008) (en

banc)); United States v. Jones,

(2d Cir. 2024) (applying an abuse of

discretion standard of review to evaluate challenge to sentence based on constitutionally

impermissible factors).

II. The Government’s Breach of the Plea Agreement

Bland claims the Government breached the plea agreement by implicitly arguing

for a sentence above the Stipulated Guidelines Range of fifty-one to sixty-three months.

To wit, in its sentencing submission to the District Court, the Government asserted that

“in imposing a sentence of 60 months’ imprisonment, the Court can reasonably expect

that the defendant may serve no more than approximately 27 months, a shocking reality

that the Court can and should consider in setting an appropriate sentence.” App’x at 106.

It based this assertion on the availability of potential served-time reductions for

“exemplary compliance with institutional disciplinary regulations,”

(b)(1), for participation in and completion of “evidence-based recidivism reduction

programming or productive activities,”

(d)(4);

(g)(3), and

for successful completion of the Residential Drug Abuse Program (“RDAP”),

6 3621(e)(2)(B). 1 And at sentencing, the Government argued: “When you look, your Honor,

at the nature of the crime, as a guideline sentence, we advocate for 60 months, a guideline

sentence above 60 months, indeed a sentence above 60 months, would be reasonable

when you think about the quantum of harm that one person inflicted over a sustained

period of time.” App’x at 159.

We agree that the totality of this advocacy constituted the Government breaching

its plea agreement with Bland. The Government—erroneously, as conceded at oral

argument—represented to the District Court that Bland would likely serve thirty-three

fewer months than the recommended sentence. These representations carried a not-so-

hidden message to the District Court: to ensure that Bland actually serves the intended

sentence, the District Court would need to impose a much higher sentence. After all, the

parties’ stipulated range of fifty-one to sixty-three months represents a total range of just

twelve months. Moreover, the Government recommended a sentence of sixty months,

which is just three months shy of the top of the stipulated range—that margin was the

only legitimate increase the Government could argue without running afoul of its

commitment not to advocate for more than sixty-three months. Given that context, the

1 The Government attributed a potential twelve months of reductions in Bland’s sentence to RDAP. However, Bland is not eligible for any reductions pursuant to RDAP, because his offense “involved the carrying, possession, or use of a firearm.” See

(b)(5)(ii). Bland’s counsel explained this to the District Court at sentencing. App’x at 153. The Government did not respond at sentencing, but admits this mistake on appeal. Appellee’s Br. 19 n.4.

7 Government’s advocacy more clearly pointed towards an upward variance or departure

from the stipulated range, rather than a mere three-month increase.

It matters not that the Government did not explicitly request a number above sixty

months. Even an explicit disclaimer that the Government is not asking for a sentence

above the stipulated range “must be carefully studied in context, and where the

government’s commentary reasonably appears to seek to influence the court in a manner

incompatible with the agreement, we will not hesitate to find a breach, notwithstanding

formal language of disclaimer.” United States v. Amico,

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

see Vaval,

(explaining that statements of intent at sentencing “do not,

however, insulate the government against a finding of breach if in fact what was said

constituted an argument about . . . whether to upwardly depart”); see also United States v.

Farias-Contreras,

(9th Cir. 2024) (en banc) (“[T]he government breaches its

bargain with the defendant if it purports to make the promised recommendation while

‘winking’ at the district court to impliedly request a different outcome.” (quoting United

States v. Morales Heredia,

(9th Cir. 2014))). The Government’s

sentencing advocacy here constituted an argument for a sentence above the stipulated

range in contravention of the plea agreement.

Furthermore, the very basis of the Government’s advocacy is problematic even

without considering the limitations imposed by the plea agreement. We recently

explained that “district courts may not rely on the potential for earned time credit under

8 the First Step Act as a stand-alone factor to enhance a defendant’s sentence,” and “cannot

lengthen a defendant’s sentence based on the BOP’s possible reduction of the sentence

for participating in a rehabilitation program.” United States v. James,

, 44 (2d

Cir. 2025). Among other reasons, this is because “under the First Step Act, a prisoner is

not certain to receive earned time credit” since “[t]he decision to award earned time credit

is discretionary,” and the “decision to extend a sentence based on potential earned time

credits may therefore rest on an expectation of results that never come to pass.”

.

Also, a “defendant’s potential future participation in a rehabilitation program is in any

event not meaningfully related to their ‘background, character, and conduct’ for purposes

of determining an appropriate sentence.”

at 44 (quoting

).

True, consideration of earned time credits may sometimes be appropriate, if a

District Court “meaningfully tied its consideration of earned time credit to the § 3553(a)

factors.” Id. at 42 (emphasis added). But it is never the case that earned time credits per

se may be considered as part of sentencing, because doing so bypasses the statutory

imperative of § 3553, which “directs a district court to consider certain factors ‘in

determining the particular sentence to be imposed,’” id. at 41 (quoting

(a)),

and not “whether any term of imprisonment that the defendant may

ultimately serve fulfills those purposes,”

(citation omitted).

The Government’s sentencing submission cited served-time reductions without

meaningfully connecting that consideration to any § 3553(a) factor. See App’x at 106–07.

9 When questioned at oral argument on the propriety of doing so in light of James,

Government counsel asserted that James is of little import. Not so. It was improper—and

is always improper—for the Government to cite potential served-time reductions as a

standalone factor for sentencing. Consideration of such reductions must be meaningfully

tied to the § 3553(a) factors—mere lip service will not do. As always, a party may not

“repackag[e]” arguments precluded by other statutory limitations under the guise of a

§ 3553(a) analysis. See United States v. Amato,

(2d Cir. 2022).

Even though the Government breached this requirement, however, “[t]o

constitute plain error, a resulting error must also be plain and affect substantial rights.”

See Rivera,

. While the Government implicitly requested a sentence higher

than the agreed-upon range, the District Court did not take the bait. And while James

makes clear that the basis for the Government’s implicit request was improper, our

opinion in James was published after sentencing in this case. See United States v. Aybar-

Peguero,

(2d Cir. 2023) (explaining that errors are plain if “contrary to

law that was clearly established” (quoting United States v. Donziger,

(2d

Cir. 2022))). As such, we discern no plain error resulting from the Government’s breach

of the plea agreement.

III. The Government’s Sentencing Advocacy Incorporating Potential Bias

Bland also takes issue with the Government’s references to his physical stature in

its sentencing advocacy, arguing that such references rely on immutable characteristics

10 and implicate “negative size-related stereotypes about black males.” Appellant’s Br. 32–

34. Specifically, the Government argued at sentencing that Bland is a “tall, powerfully

built man,” that “what this really is, your Honor, is a very large, powerful man, armed

with a gun, selling drugs in a store that people are trying to come in and out of,” and that

“they’re confronted with a six-foot-five adult male, armed, selling drugs every day.”

App’x at 156–58.

“[A] basic premise of our criminal justice system” is that “law punishes people for

what they do, not who they are,” which is why “[d]ispensing punishment on the basis of

an immutable characteristic flatly contravenes this guiding principle.” Buck v. Davis,

(2017). It is so important our sentencing be free of illicit bias that we have

cautioned “even the appearance that the sentence reflects a defendant’s race or

nationality will ordinarily require a remand for resentencing.” United States v. Fiore,

(2d Cir. 2004) (quoting United States v. Leung,

(2d Cir. 1994)).

Here, the Government provides no satisfactory explanation as to the relevance of Bland’s

size to his sentencing. While the Government deployed facially neutral language, the

worry of course is that these references to size could have the effect of triggering racist or

disparaging views even while avoiding overtly racialized language.

There is, however, nothing in the record to suggest that the District Court was

influenced by the Government’s argument.

11 Accordingly, we discern no error—let alone plain error—in the District Court’s

sentence, nor did the District Court abuse its discretion in imposing this sentence. Bland’s

sentence was procedurally and substantively reasonable. See Park, 758 F.3d at 196–202

(applying both standards of review under both analyses because where “a district court

relies on an improper factor to justify the sentence imposed, it can be difficult, if not

impossible, for a reviewing court to evaluate separately the ‘procedural’ and ‘substantive’

reasonableness of a sentence”); Jones, 100 F.4th at 111–12 (evaluating the district court’s

sentencing consideration of defendant’s association with sectarian militant group for

both procedural reasonableness under plain error and substantive reasonableness under

abuse of discretion).

IV. Conclusion

Although we are reluctant to countenance the Government’s breach of the plea

agreement, and we are troubled by the nature of the Government’s advocacy, we find no

plain error or unreasonableness in Bland’s sentencing. For the foregoing reasons, the

judgment of the District Court is AFFIRMED.

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

12