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United States v. Cook

United States Court of Appeals, Second Circuit

July 16, 2013

UNITED STATES OF AMERICA, Appellee,
v.
Michael Cook, Sean Herrmann, AKA Vinny, Scott Power, Marcel Malachowski, AKA Sealed Defendant 4, AKA Memo, Selena Hopper, AKA Sealed Defendant 2, AKA Sealed Defendant 5, Lee Tarbell, AKA Sealed Defendant 6, AKA Sleeman, June Jacobs, AKA Sealed Defendant 7, AKA Punk, John Jacobs, AKA Sealed Defendant 8, AKA Wadd, Bryan Cole, AKA Sealed Defendant 9, AKA Buckwheat, Jacquis Harris, AKA Sealed Defendant 7, AKA Sealed Defendant 10, Owen Peters, AKA Sealed Defendant 11, AKA Weezy, Brandon Benedict, AKA Sealed Defendant 12, David Herrmann, AKA Sealed Defendant 13, Adam Fender, AKA Sealed Defendant 14, AKA The Electrician, Jonas Cavallo, AKA Sealed Defendant 15, AKA The Carpenter, Armande Millhouse, AKA Sealed Defendant 16, AKA Beatlejuice, AKA Milly, Jeffrey Baroni, AKA Sealed Defendant 18, Jason Tackus, AKA Sealed Defendant 19, Joshua Brown, AKA Sealed Defendant 20, Sean Canty, AKA Sealed Defendant 21, Aaron Freyder, AKA Sealed Defendant 22, Dominick Stone, AKA Sealed Defendant 23, Defendants, ANDREW NOURSE, AKA Sealed Defendant 17, AKA The Jeweler, Defendant-Appellant.

Argued: April 19, 2013

Andrew Nourse appeals from his sentence of 60 months' imprisonment for conspiracy to distribute and possess with the intent to distribute more than a 100 kilograms of marijuana, entered in the United States District Court for the Northern District of New York (Kahn, J.). He challenges a ruling on criminal history; but to press that argument, Nourse must overcome an appeal waiver. Although the district court expressed the terms of the waiver imperfectly, the objection was unpreserved. We hold that plain error is the standard of review for an unpreserved challenge to an appeal waiver, and that Nourse has not sustained his burden.

BRENDA K. SANNES (Terrence M. Kelly, on the brief) for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

DEVIN MCLAUGHLIN, Langrock Sperry & Wool, LLP, Middlebury, VT, for Defendant-Appellant.

Before: JACOBS, Chief Judge, POOLER and WESLEY, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Andrew Nourse appeals from his 60-month sentence, entered in the United States District Court for the Northern District of New York (Kahn, J.), for conspiracy to distribute and possess with the intent to distribute more than a 100 kilograms of marijuana. He challenges a ruling on criminal history; but to press that argument, Nourse must overcome an appeal waiver. Although the district court expressed the terms of the waiver imperfectly, the objection was unpreserved. We hold that plain error is the standard of review for an unpreserved challenge to an appeal waiver, and that Nourse has not sustained his burden. Affirmed.

I

Andrew Nourse was a driver for an Albany drug distribution ring that operated in 2008-09. After his arrest in 2011, Nourse entered a plea agreement consenting to the charge of conspiracy to distribute and possess with the intent to distribute more than 100 kilograms of marijuana. He stipulated that he was "accountable for at least 100 kilograms but less than 400 kilograms" of marijuana. Plea Agreement at 7, ECF No. 389.

Nourse's plea agreement recites that he consulted with counsel, "fully underst[ood] the extent of his rights to appeal" and "waive[d] any and all rights, including those conferred by l8 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to appeal or collaterally attack his conviction and any sentence of imprisonment of 60 months or less . . . ." Plea Agreement at 12 (emphasis added).

During the change of plea colloquy, the district court reviewed Nourse's plea agreement with him, touching as follows on the appeal waiver:

THE COURT: Is there a waiver of any appeal rights in the plea agreement?
MR. KELLY: Yes, your Honor. The defendant waives his right to appeal and to collaterally attack his conviction. He preserves the right to appeal the ...

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