United States v. ROQUE (2005)

We have long recognized that an appeal waiver “does not . . . act as a waiver against an appeal on the basis that the plea itself, including the waiver, was not intelligent or voluntary.” Roque, 421 F.3d at 121 (emphasis added).

A plea is involuntary if it is “the product of actual or threatened physical harm, mental coercion overbearing the defendant’s will, or the defendant’s sheer inability to weigh his options rationally.” United States v. Roque, 421 F.3d 118, 122 (2d Cir. 2005) (quoting Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988)).

A defendant’s waiver of appellate 19 rights is considered knowing and voluntary if the defendant “fully understood the consequences 20 of the waiver” and the decision was not “the product of actual or threatened physical harm, 21 mental coercion overbearing the defendant’s will, or the defendant’s sheer inability to weigh his 22 options rationally.” United States v. Roque, 421 F.3d 118, 122 (2d Cir. 2005) (quoting Miller v. 23 Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988)). 2…

However, we recognize an exception to the presumptive enforcement of appellate waivers: a waiver in a plea agreement “does not . . . act as a waiver against an appeal on the basis that the plea itself, including the waiver, was not intelligent or voluntary.” United States v. Roque, 421 F.3d 118, 121 (2d 2 Cir. 2005).

However, we recognize an exception to the presumptive enforcement of appellate waivers: a waiver in a plea agreement “does not ... act as a waiver against an appeal on the basis that the plea itself, including the waiver, was not intelligent or voluntary.” United States v. Roque, 421 F.3d 118, 121 (2d Cir. 2005).

Brizard’s appeal must be dismissed because his plea agreement with the government precludes him from filing “a direct appeal [of] ... any sentence within or below the Stipulated Guidelines Range[ ]” of 70 to 81 months’ imprisonment. “[W]e have consistently held [such agreements] enforceable,” as long as (1) they are “knowing and voluntary,” see United States v. Roque, 421 F.3d 118, 121-22 (2d Cir.2005), (2) “the sentence was [not] imposed based on constitutionally impermissi…

The waiver provision states that “the defendant will not file a direct appeal [of] ... any sentence within or below the Stipulated Guidelines Range [of 135 to 168 months’ imprisonment].” “This waiver is in a familiar form that we have consistently held enforceable” as long as the waiver is “knowing and voluntary.” See United States v. Roque, 421 F.3d 118, 121-22 (2d Cir.2005).

We note that this result is not unjust because this Court’s decision in United States v. Roque, 421 F.3d 118, 124 (2d Cir.2005), found a similar request mer-itless.

We note that this result is not unjust because this Court’s decision in United States v. Roque, 421 F.3d 118, 124 (2d Cir.2005), found a similar request mer-itless.

We held that “an otherwise valid plea agreement and waiver of right to appeal sentence, entered into before [Booker], is enforceable even if the parties, at the time they entered into the agreement, erroneously believed that the United States Sentencing Guidelines were mandatory rather than advisory.” Id. at 124.

We held that “an otherwise valid plea agreement and waiver of right to appeal sentence, entered into before [Booker], is enforceable even if the parties, at the time they entered into the agreement, erroneously believed that the United States Sentencing Guidelines were mandatory rather than advisory.” Id. at 124.

Although United States v. Roque, 421 F.3d 118, 124 (2d Cir.2005), holds that a defendant has no right to withdraw from a plea agreement based on subsequent changes in federal sentencing law, no decision of our Court, that we know of, has held it is erroneous to grant a withdrawal motion based on such changes.

This Court, however, has held "that an otherwise valid plea agreement and waiver of right to appeal sentence, entered into before January 12, 2005, is enforceable even if the parties, at the time they entered into the agreement, erroneously believed that the United States Sentencing Guidelines were mandatory rather than advisory.” United States v. Roque, 421 F.3d 118, 124 (2d Cir.2005); see also United States v. Morgan, 406 F.3d 135, 137 (2d Cir.2005) (noting that the possib…

But this court has expressly held that such errors are not 9 structural, see United States v. Roque, 421 F.3d 118, 123 (2d Cir. 2005), as have various other 10 circuits.

But this court has expressly held that such errors are not structural, see United States v. Roque, 421 F.3d 118, 123 (2d Cir.2005), as have various other circuits.

Ferreras’s argument that his guilty plea was not “knowing and voluntary” because he was unaware that the Supreme Court would subsequently, in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), invalidate the mandatory application of the Sentencing Guidelines was rejected in United States v. Roque, 421 F.3d 118, 124 (2d Cir.2005) (“The fact that [defendant] did not anticipate the changes in federal sentencing law and practice produced by Booker do…

Parker’s argument is foreclosed by United States v. Roque, 421 F.3d 118, 123 (2d Cir.2005) (“[W]e agree that certain conditions have changed since the bargain was struck.

See 18 U.S.C. § 3553 (b)(1) (2000), severed and excised, Booker, 125 S.Ct. at 756 ; see also Roque, 421 F.3d at 120 (“Pri- or to [the decision in Blakely ], neither statute nor precedent gave courts, counsel, or defendants reason to doubt that the United States Sentencing Guidelines were to be applied mandatorily in federal courts.”).

United States v. Roque, 421 F.3d 118, 122 (2d Cir. 2005).

This waiver of Mr. Tellado’s right to appeal or collaterally attack his sentence “is in a familiar form that [the Second Circuit] ha[s] consistently held enforceable.” United States v. Roque, 421 F.3d 118, 121 (2d Cir.2005).

Bousley v. United States, 523 U.S. 614, 619 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998) (internal quotation marks and citation omitted). [20] See also United States v. Roque, 421 F.3d 118, 119 (2d Cir.2005) (citing Brady and holding that the defendant could "not withdraw his plea as unintelligent, involuntary, or otherwise illegal, based solely on changes in federal law effected by the United States Supreme Court's decision in [ United States v. Booker ]."), cert. denied, ___ …

Cir. 2008); United States v. Roque, 421 F.3d 118, 121-24 (2d Cir. 2005.) Nevertheless, waivers may be set aside where “the defendant is challenging the constitutionality of the process by which he waived those rights,” including when “the defendant claims that the plea agreement was entered into without effective assistance of counsel.” United states v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001.) 98 (footnote continued)(2d Cir. 2010) (“Knowing and voluntary appellate wai…

Conn. Sept. 2, 2009) (quoting United States v. Roque, 421 F.3d 118, 122 (2d Cir. 2005)); see also Rodriguez v. United States, 2014 WL 4182492 , at *3 (D.

See Sahlin, 399 F.3d at 28-31 (1st Cir.); United States v. Roque, 421 F.3d 118, 120-24 (2d Cir. 2005), cert. denied, sub nom Delahoz v. United States, 546 U.S. 1120 (2006); United States v. Lockett, 406 F.3d 207, 212-14 (3d Cir. 2005); United States v. Johnson, 410 F.3d 137, 151-53 (4th Cir.), cert. denied, 546 U.S. 952 (2005); United States v. Guinyard, 149 Fed.Appx. 279, 281 (5th Cir. 2005) (unpublished); United States v. Bradley, 400 F.3d 459, 462-66 (6th Cir.), cert. den…

As the Second Circuit noted in a related context, “[c]ontrac- *174 tual principles simply do not support [his] attempt to have his cake and eat it, too.” United States v. Roque, 421 F.3d 118, 124 (2d Cir.2005) (quotation marks omitted).

See e.g., United States v. Roque, 421 F.3d 118 (2d Cir.2005); United States v. Green, 405 F.3d 1180 (10th Cir.2005); United States v. Sahlin, 399 F.3d 27, 30 (1st Cir.2005).

See United States v. Roque, 421 F.3d 118, 121 (2d Cir. 2005).

See, e.g., United States v. Roque, 421 F.3d 118, 121 (2d Cir. 2005) (stating that plea agreement’s waiver of appeal rights “does not . . . act as a waiver against an appeal on the basis that the plea itself, including the waiver, was not intelligent or voluntary”).

But we will not enforce an appeal waiver where — as here — the “sentencing decision ... was reached in a manner that the plea agreement did not anticipate,” United States v. Liriano-Blanco, 510 F.3d 168, 174 (2d Cir.2007); see also United States v. Roque, 421 F.3d 118, 123-24 (2d Cir.2005) (suggesting that an appeal waiver would be unenforceable if the defendant failed to “underst[an]d fully the consequences of his bargain, both in terms of what he was gaining and what he wa…

However, the error as to the correct Guidelines range does not amount to a claim that Castillo’s agreement to the appellate waiver was not voluntary or knowing, because it does not amount to a claim that Castillo did not “fully understand] the potential consequences of his waiver.” Ready, 82 F.3d at 557 ; see also United States v. Roque, 421 F.3d 118, 123 (2d Cir.2005) (issue of whether plea was void for mutual mistake regarding sentencing laws was “simply not relevant” to w…

However, the error as to the correct Guidelines range does not amount to a claim that Castillo’s agreement to the appellate waiver was not voluntary or knowing, because it does not amount to a claim that Castillo did not “fully understand] the potential consequences of his waiver.” Ready, 82 F.3d at 557 ; see also United States v. Roque, 421 F.3d 118, 123 (2d Cir.2005) (issue of whether plea was void for mutual mistake regarding sentencing laws was “simply not relevant” to w…

See, e.g., United States v. Roque, 421 F.3d 118, 124 (2d Cir.2005); United States v. Morgan, 406 F.3d 135, 137-38 (2d Cir.2005).

See United States v. Roque, 421 F.3d 118, 121-23 (2d Cir.2005) (explaining that waivers of right to appeal sentence, entered into knowingly and voluntarily, are enforceable).

See also United States v. Roque, 421 F.3d at 124 .

See United States v. Roque, 421 F.3d 118, 123 (2d Cir. 2005) (‘‘View- ing this plea agreement as a contract, we agree that certain conditions have changed since the bargain was struck.