Opinion
No. 10-2231-cr.
June 16, 2011.
Appeal from the United States District Court for the Southern District of New York (John G. Koeltl, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal is DISMISSED.
Laurie S. Hershey, Manhasset, NY, for Appellant.
Amy N. Ely, Katherine Polk Failla, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
PRESENT: JON O. NEWMAN, ROGER J. MINER, GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Defendant-appellant Guy Brizard appeals from a judgment of conviction entered on June 4, 2010, in the United States District Court for the Southern District of New York (Koeltl, J.), following a guilty plea to one count of conspiring to commit identity theft and aggravated identity theft, in violation of 18 U.S.C. § 371; one count of identity theft, in violation of 18 U.S.C. § 1028(a)(7); and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. We assume the parties' familiarity with the underlying facts, record of prior proceedings, and issues on appeal, which we reference only as necessary to explain our decision.
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 impermissible factors, such as ethnic, racial or other prohibited biases," and (3) the district court provided some rationale for the sentence, see United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000). Brizard does not allege that any of those "very limited" exceptions apply to this case, see United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010), and therefore his sentence of 70 months' imprisonment, a sentence at the bottom of the Stipulated Guidelines Range, implicates the plea agreement's waiver provision and requires us to dismiss this appeal.
Accordingly, for the foregoing reasons, the appeal is DISMISSED.