United States v. Harper

16-754-cr United States v. Harper 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 5th day of June, two thousand eighteen. PRESENT: ROBERT D. SACK, REENA RAGGI, Circuit Judges, LEWIS A. KAPLAN, District Judge. ---------------------------------------------------------------------- UNITED STATES OF AMERICA, Appellee, v. No. 16-754-cr KENNETH HARPER, AKA FRENCHY, AKA PUDGE, Defendant-Appellant. ---------------------------------------------------------------------- APPEARING FOR APPELLANT: PETER J. TOMAO, Law Office of Peter J. Tomao, Garden City, New York. APPEARING FOR APPELLEE: MARY C. BAUMGARTEN, Assistant United States Attorney (Monica J. Richards, Assistant United States Attorney, on the brief), for James P. Kennedy, Jr., United States Attorney for the  Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. Western District of New York, Rochester, New York. Appeal from a judgment of the United States District Court for the Western District of New York (Frank P. Geraci, Jr., Chief Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on March 8, 2016, is AFFIRMED. Defendant Kenneth Harper, who stands convicted for conspiracy to traffic in cocaine base, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, 851, and for possession of firearms in furtherance of that drug crime, see 18 U.S.C. § 924(c)(1)(A), (2), challenges the guilty plea on which his conviction is based. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm. Harper contends that his plea was not knowing and voluntary because it did not comport with Fed. R. Crim. P. 11, a challenge outside the scope of an appellate waiver. 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”). Where, as here, a defendant did not raise a Rule 11 challenge in the district court, we review only for plain error. See United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006); see generally United States v. Marcus, 560 U.S. 258, 262 (2010) (stating that plain error is (1) error, (2) that is clear or ...

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