United States v. Hester

25-552 United States v. Hester 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 26th day of October, two thousand twenty-six. PRESENT: RICHARD J. SULLIVAN, STEVEN J. MENASHI, ALISON J. NATHAN, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 25-552 VICTOR HESTER, Defendant-Appellant. _____________________________________ For Defendant-Appellant: SARAH KUNSTLER, Law Office of Sarah Kunstler, Brooklyn, NY. For Appellee: SEAN C. ELDRIDGE, Assistant United States Attorney, for Michael DiGiacomo, United States Attorney for the Western District of New York, Rochester, NY. Appeal from a judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Defendant’s appeal of the March 4, 2025 judgment is DISMISSED. Victor Hester appeals a judgment of conviction following his plea of guilty to a two-count Information charging him with possession with intent to distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Although Hester’s sentencing range under the advisory Sentencing Guidelines was seventy-five to eighty-one months’ imprisonment, the parties stipulated to a sentencing range of 108 to 120 months’ imprisonment pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). As part of the agreement, Hester expressly “waive[d] the right to appeal and collaterally attack” any sentence within or below the stipulated sentencing range. App’x at 91. The agreement also provided that 2 by pleading guilty to the federal charges, Hester would not be further prosecuted by the Monroe County District Attorney’s Office (“MCDA”) for his pending state charges. 1 The district court ultimately sentenced Hester to 108 months’ imprisonment, followed by three years’ supervised release, to run concurrently with his undischarged state parole sentence. Following Hester’s sentencing, the pending state charges were dismissed. On appeal, Hester argues that his guilty plea was neither knowing nor voluntary because, at the time the plea agreement was entered, “defense counsel, the government, and the district court” were under the mistaken belief that Hester’s pending state charges “qualified [him] as a persistent violent felony offender in state court” and therefore subjected him to two “indeterminate sentences of up to life imprisonment, with minimum terms of [sixteen] and [twenty] years.” Hester Br. at 29–30 (emphasis omitted). He also contends that, upon discovering the mistake concerning his prior state conviction, the district court erred in concluding that it (i) lacked authority under Federal Rule of Criminal Procedure 35(a) to vacate his sentence, and (ii) lacked authority under 1At the time of the plea agreement, Hester was facing charges in Monroe County, New York for Robbery in the First Degree, Robbery in the Second Degree, and Criminal Possession of a Weapon in the Second Degree based on the same conduct underlying the federal charges. See App’x at 85–86, 91–92. 3 Federal Rule of Criminal Procedure 11(e) to permit Hester to withdraw his guilty plea. Hester alternatively argues that this Court should exercise its independent Rule 11(e) authority to vacate his plea because it “was not knowing or voluntary.” Id. at 38. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, to which we refer only as necessary to resolve this appeal. I. Background Hester’s primary challenge turns on the difference between two sections of the New York Penal Law. New York Penal Law § 70.04 governs sentencing for a “second violent felony offender,” defined as “a person who stands convicted of a violent felony offense . . . after having previously been subjected to a predicate violent felony conviction.” N.Y. Penal Law § 70.04(1)(a) (emphasis added). Section 70.08 governs sentencing for a “persistent violent felony offender,” defined as “a person who stands convicted of a violent felony offense . . . after having previously been subjected to two or more predicate violent felony convictions.” Id. § 70.08(1)(a) (emphasis added). Under section 70.04, a person convicted of Robbery in the First Degree, id. § 160.15 – which is a Class B violent felony – who has one prior violent felony 4 conviction is subject to a mandatory sentence of ten to twenty-five years’ imprisonment. Id. § 70.04(3)(a). By contrast, section 70.08 provides that a person convicted of Robbery in the First Degree who has two or more prior violent felony convictions is subject to a mandatory sentence of twenty years to life imprisonment. Id. § 70.08(3)(a-1). For Criminal Possession of a Weapon in the Second Degree, see id. § 265.03 – which is a Class C violent felony – section 70.04 provides that a person with only one prior violent felony conviction is subject to a mandatory sentence of seven to fifteen years’ imprisonment. Id. § 70.04(3)(b). Under section 70.08, a person who commits a Class C violent felony after having been previously convicted of two or more prior violent felonies is subject to a mandatory sentence of sixteen years to life imprisonment. Id. § 70.08(3)(b). At the time of Hester’s guilty plea, the parties recognized that the federal and state charges were intertwined. As a result, the plea negotiations involved both state and federal prosecutors as well as Hester’s defense counsel in the two proceedings. Significantly, Hester’s counsel in his state proceedings, as well as the MCDA, advised Hester’s federal counsel that Hester “fac[ed] a sentence of at least [sixteen] years to life on his state charges as a persistent violent felon.” 5 App’x at 304. This representation was also memorialized in Hester’s plea agreement, which stated that, “[b]ased on [Hester’s] prior convictions,” he could be adjudicated a “mandatory persistent violent felony offender” and “sentenced to a minimum of [sixteen] years’ imprisonment to life imprisonment” if convicted of “Criminal Possession of a Weapon in the Second Degree,” and “a minimum of [twenty] years’ imprisonment to life imprisonment” if convicted of “Robbery in the First Degree.” Id. at 92. At sentencing, the district judge questioned whether Hester would qualify as a persistent violent felony offender in state court. The district judge expressed “surprise[]” that one of Hester’s prior convictions – for criminal possession of a weapon in the second degree as a seventeen-year-old – counted as a predicate offense, because it was a youthful offender adjudication under state law. Id. at 207. Hester’s federal counsel responded: “That’s what [Hester’s] state attorney told me.” Id. Based on that representation, the district court accepted Hester’s plea, and subsequently sentenced him to 108 months’ imprisonment, the minimum permitted by the Rule 11(c)(1)(C) agreement. The day after the sentencing hearing, Hester’s counsel recognized that she had mischaracterized Hester’s state sentencing exposure. Under New York law, 6 a youthful offender adjudication “is not a judgment of conviction for a crime or any other offense.” N.Y. Crim. Proc. Law § 720.35(1); see also People v. Meckwood, 20 N.Y.3d 69, 72 (2012) (“In New York, a prior adjudication as a youthful offender . . . cannot serve as the basis for multiple offender sentencing.”); People v. Lane, 60 N.Y.2d 748, 751 (1983) (“[A] youthful offender adjudication may not be counted as a conviction for purposes of second[-]offender status.”). Because Hester’s youthful offender adjudication was “not a predicate violent felony” under New York law, counsel explained that Hester could not be adjudicated a persistent violent felony offender and was not facing a “maximum of life if convicted on either of his state gun or robbery charges.” App’x at 304. Instead, Hester faced ten to twenty-five years on the state robbery charge and seven to fifteen years on the state gun charge. See N.Y. Penal Law § 70.04. In light of this error, counsel asked the district court to “reconsider its acceptance” of Hester’s plea. App’x at 304. Three days after the sentencing, the district court held a hearing on the matter and inquired directly whether Hester would “move to withdraw the plea” should the court vacate his sentence. Id. at 233. Hester’s counsel declined to answer that question, instead requesting an “opportunity to speak with [the government],” id., presumably to better 7 understand the government’s intentions should Hester move to withdraw his plea. Recognizing the potential for a conflict of interest between Hester and his counsel based on a possible ineffective-assistance-of-counsel claim, the district court appointed Hester conflict-free counsel pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), to advise him concerning whether he wished to file a motion to withdraw his plea or vacate his sentence. Two weeks later, the parties again appeared before the district court. By that time, the MCDA had already dismissed Hester’s state charges in light of the federal plea agreement. When the district court inquired as to whether Hester wished to withdraw his guilty plea or vacate his sentence, Curcio counsel noted that a motion to correct Hester’s sentence under Rule 35(a) is not “something that can be filed” under the circumstances, and “that a [28 U.S.C. §] 2255 motion is going to be [Hester’s] remedy” should he seek relief from his plea and sentence. App’x at 277. Counsel then stated that Hester was “ready to proceed” with the district “[c]ourt signing the judgment [of conviction].” Id. Accordingly, the district court signed the judgment, and this appeal followed. II. Hester’s Appeal is Barred by the Appeal Waiver in His Plea Agreement. Hester contends that his plea – “entered under [an] erroneous belief” about his sentencing exposure – “was not the product of informed, voluntary decision- 8 making,” Hester Br. at 29, and is therefore “constitutionally invalid,” Reply Br. at 2. 2 The government, by contrast, asserts that the appeal waiver contained in Hester’s plea agreement is fully enforceable. According to that provision, Hester “knowingly waive[d] the right to appeal and collaterally attack any component of a sentence imposed by the [c]ourt which falls within or is less than an aggregate term of imprisonment of 108 to 120 months . . . notwithstanding the manner in which the [c]ourt determines the sentence” and including if “in the future [Hester] becomes aware of previously unknown facts or a change in the law which [Hester] believes would justify a decrease in [Hester’s] sentence.” App’x at 91–92 (emphasis omitted). “We review plea agreements, including waivers of the right to appeal, de novo and in accordance with general principles of the law of contract.” United States v. Green, 897 F.3d 443, 447 (2d Cir. 2018). Their terms are “presumptively enforceable if [they] ha[ve] been entered into knowingly, voluntarily, and competently,” and we have consistently held that “[e]xceptions to th[e] presumption [of enforceability] occupy a very circumscribed area of our jurisprudence.” United States v. Lajeunesse, 85 F.4th 679, 692 (2d Cir. 2023) 2Because Hester does not argue that his appeal is outside the scope of the appeal waiver, we consider only whether the waiver is enforceable, not whether it covers this appeal. 9 (internal quotation marks omitted). In fact, we have identified “only five circumstances where we will not enforce a waiver: (1) where the waiver was not made knowingly, voluntarily, and competently; (2) where the sentence was based on constitutionally impermissible factors, such as ethnic, racial, or other prohibited biases; (3) where the government breached the agreement containing the waiver; (4) where the district court failed to enunciate any rationale for the defendant’s sentence; and (5) where the waiver was unsupported by consideration.” Cook v. United States, 84 F.4th 118, 122 (2d Cir. 2023) (alterations adopted and internal quotation marks omitted). What is more, we have enforced appeal waivers “where the sentence was conceivably imposed in an illegal fashion or in violation of the Guidelines, but yet was still within the range contemplated by the plea agreement,” United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000); “where a sentence was arguably imposed contrary to a statutory requirement,” United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (citing United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995)); and where the district court “fail[ed] to make findings regarding the disputed portions of the presentence report at sentencing,” United States v. Arevalo, 628 F.3d 93, 97 (2d Cir. 2010). We have also emphasized that garden-variety errors cannot 10 vitiate an appeal waiver. See, e.g., United States v. Woltmann, 610 F.3d 37, 43 (2d Cir. 2010) (underscoring that the “misapplication of a [G]uideline, or a mistake of law, or a dubious finding of fact” are not grounds for voiding an otherwise-valid appeal waiver (emphasis added)). We conclude that Hester’s plea was both knowing and voluntary and that the appeal waiver is therefore enforceable. “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. Delvalle, 94 F.4th 262, 266 (2d Cir. 2024) (internal quotation marks omitted). The record reflects none of these shortcomings. See, e.g., App’x at 163 (“The [c]ourt is satisfied, based on answers [Hester has] given to questions put to him by the [c]ourt, based on [Hester’s] demeanor in answering the questions[,] and based on [Hester’s] signing of the written plea agreement, that the plea agreement and plea are being entered into knowingly, intelligently[,] and voluntarily.”). Moreover, a waiver is “knowing or informed if the defendant fully understood the consequences of the waiver.” United States v. Roque, 421 F.3d 118, 122 (2d Cir. 2005) (internal quotation marks omitted). By all accounts, Hester 11 comprehended the consequences of entering into the plea agreement. The district court explained to Hester the ins and outs of the agreement, and Hester repeatedly made clear that he “want[ed] to take the plea.” App’x at 125; see id. at 134 (“I want to take the plea.”); id. at 135 (“I’m willing to take the plea.”); id. at 138 (“I want to take the plea, your Honor.”). The court also carefully walked Hester through the appeal waiver, emphasizing that Hester was “consenting, that is agreeing, to give up [his] right to appeal or collaterally attack . . . any sentence that includes a term of imprisonment between [nine] and [ten] years – 108 to 120 months.” Id. at 152. Hester confirmed that he understood. See id. The same was true at sentencing, where the district court reiterated that Hester had “agreed to give up [his] right to appeal or collaterally attack the sentence imposed” because it was within the range contemplated by the agreement, id. at 224, and that “in exchange for this plea, [the MCDA was] not going to pursue the robbery charge or the criminal possession of a weapon in the second degree [charge]” against him, id. at 203. To be sure, at the time the district court accepted Hester’s plea, the parties and the court operated on the false premise that Hester could be subject to a life sentence in state court. But that “is an insufficient basis to void a plea agreement” where, as here, the agreement expressly provided for “the possibility of a mistaken 12 prediction.” Riggi, 649 F.3d at 149 (internal quotation marks omitted). Hester’s plea agreement stated that he “could be adjudicated a mandatory persistent violent felony offender.” App’x at 92 (emphasis added). He was therefore informed that a life sentence was a mere possibility, not a certainty. In addition, the appeal waiver warned that Hester would not be able to challenge his sentence “in the event that in the future [he] becomes aware of previously unknown facts or a change in the law which [he] believes would justify a decrease in [his] sentence.” Id. “An agreement that has made such express provisions with respect to the possibility of” an incorrect statement of law “is not a proper candidate for rescission on the ground of mutual mistake when that possibility has come to fruition.” United States v. Rosen, 409 F.3d 535, 548–49 (2d Cir. 2005). 3 Finally, the Supreme Court’s recent decision in Hunter v. United States, 608 U.S. 713 (2026), is not to the contrary. There, the Court held “that an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice – meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.” Id. at 717. Hester cannot satisfy this “high bar,” which applies only in “extreme cases” where “the justice system’s 3“Rosen did not involve an appeal-waiver provision, but we see no reason why Rosen’s approach would not be valid in this context as well.” Riggi, 649 F.3d at 149. 13 basic integrity is at stake.” Id. at 728. Put simply, this is not a case in which the sentence was “infected with a blatant constitutional error . . . like barring a defendant from becoming pregnant” as a condition of supervised release. Id. Instead, the error here is the kind that, while unfortunate, “cannot cancel” an otherwise-valid appeal waiver. Id. at 727; accord Yemitan, 70 F.3d at 748 (appeal waivers should be enforced absent “extraordinary circumstances”). 4 * * * We have considered Hester’s remaining arguments and find them to be without merit. Accordingly, we DISMISS the appeal. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 4 Hester nowhere asserts that “he received constitutionally ineffective assistance of counsel during his plea proceedings,” which would render his guilty plea “invalid and his appeal waiver unenforceable.” United States v. Lloyd, 901 F.3d 111, 124 (2d Cir. 2018); see also Parisi v. United States, 529 F.3d 134, 138 (2d Cir. 2008). But even if Hester had done so, we would adhere to our “usual practice” and decline to “consider the claim on the direct appeal[,] . . . leav[ing] it to [Hester] to raise the claims on a petition for habeas corpus under 28 U.S.C. § 2255.” United States v. Oladimeji, 463 F.3d 152, 154 (2d Cir. 2006); see also Massaro v. United States, 538 U.S. 500, 504 (2003) (“[A] motion brought under [section] 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”). 14