The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
On October 19, 2005 defendant Robert Suber ("Suber") was charged in a criminal Complaint with a single count of failure to pay child support in violation of 18 U.S.C. §228.*fn2 On May 23, 2006 Suber entered his consent to proceed before United States Magistrate Judge Leslie G. Foschio and, pursuant to a plea agreement with the government, pled guilty to a one-count misdemeanor Information charging the aforementioned violation of 18 U.S.C. §228. Under the terms of his plea agreement, Suber acknowledged that the United States Sentencing Guidelines did not apply to his case and that the maximum penalty that could be imposed upon him was six months' incarceration, a fine of up to $5,000 and a one-year period of supervised release. Suber agreed to waive his right to appeal any sentence imposed within those terms.
On August 1, 2006 Suber was sentenced by Magistrate Judge Foschio to six months' imprisonment and was ordered to pay restitution in the amount of $39,615.72. Suber filed a Notice of Appeal of the sentence to this Court on September 26, 2006 arguing that the sentence of imprisonment imposed by the Magistrate Judge was unreasonable because it was greater than necessary to achieve its ends and because it was greater than that imposed on others convicted of the same charge.
In response to Suber's appeal, on November 1, 2006 the government filed a Motion to Dismiss the Appeal arguing that, in his plea agreement, Suber had waived his right to appeal the sentence. In reply, Suber now argues that his waiver of appeal is void due to violations of his due process and equal protection rights. Suber contends that he was provided insufficient notice of and opportunity to respond to a letter written to the Court by Jodie Suber, his children's mother, in which she falsely asserted that he had made no child support payment since May 2006. Suber further argues that, unlike other persons who fail to pay child support, he has been singled out for prosecution and imprisonment in violation of his equal protection rights.
A waiver of the right to appeal knowingly and voluntarily made is enforceable. See United States v. Djelenic, 161 F.3d 104, 106-07 (2d Cir. 1998); see also, United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993). However, where a defendant's constitutional rights have been violated, the waiver may not be enforced. For example, the Second Circuit has held that a waiver may be avoided when the defendant alleges that a constitutionally impermissible consideration - e.g., race or naturalized status - was a factor in the sentence. See United States v. Rosa, 123 F.3d 94 ,98 (2d Cir. 1997)(citing United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994)). Suber does not argue here that an impermissible factor played a role in determining his sentence, but rather that the Court denied him due process and equal protection by failing to provide him full opportunity to present evidence in support of his position at sentencing and by sentencing him more harshly than others convicted of the same offense. The Court concludes that the circumstances presented here do not rise to the level of a Constitutional violation.
Suber argues that the Magistrate Judge denied him due process by failing to provide him with an opportunity to refute the accusations contained in Jodie Suber's letter*fn3 which he received only four days prior to sentencing, and by failing to consider evidence he provided indicating that the child support records from Duval County, Florida*fn4 , and the Pre-Sentence Investigation Report which relied on those records, were erroneous in that the records failed to note several child support payments which had been deducted from his wages.*fn5 Suber charges that the Magistrate Judge failed to consider such information despite his raising the issue in his Statement with Regard to Sentencing Factors ("Sentencing Statement") and at sentencing.*fn6
The record reflects that Suber and counsel were permitted at sentencing to dispute the allegations contained in Jodie Suber's letter. Counsel argued at length that Suber had made additional support payments to Jodie Suber after May 2006. Counsel has provided this Court with documentation which, Suber contends, demonstrates that he made such additional payment.*fn7 Suber also argued, extensively, that the Duval County records are incomplete. Suber had ample opportunity at sentencing to make his argument. While Suber may now believe that he then could have or should have presented additional information or made additional arguments, Suber could have done so at sentencing or could have requested an adjournment in order to supplement the record prior to sentencing.*fn8 The Court does not find any due process violation in these circumstances.
Suber also argues that his equal protection rights were violated by the sentence imposed because he has been sentenced to imprisonment while others have not been. In support of his claim, Suber cites to the single case of United States v. Brown, 05-M-2112 (W.D.N.Y. 2005). Suber asserts that, despite owing over $75,000 in child support, Brown was sentenced by Magistrate Judge Hugh B. Scott to five years' probation. This citation to a single case in which another defendant was treated more leniently is insufficient to demonstrate an equal protection violation.*fn9
As the Court finds no Constitutional violation which would void the appeal waiver, the Court declines to further consider the appeal as Suber waived his right to appeal any sentence equal to or less than six months' imprisonment. Accordingly, the government's Motion to Dismiss the Appeal is granted and Suber's appeal is denied.