Opinion
No. 07-3998-cr.
December 10, 2008.
Appeal from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court be, and it hereby is, AFFIRMED.
Howard L. Jacobs, New York, NY, on submission, for Appellant.
Michael J. Garcia, United States Attorney, Southern District of New York (Kevin R. Puvalowski, Katherine Polk Failla, Assistant United States Attorneys, of counsel), New York, NY, on submission, for Appellee.
SUMMARY ORDER
Defendant-Appellant Andrea — Nunez pled guilty, pursuant to a plea agreement, to conspiracy to distribute and possess, with the intent to distribute, cocaine in violation of 21 U.S.C. § 846. Nunez appeals her sentence of 135 months' imprisonment, five years of supervised release, and a $100 special assessment. We assume the parties' familiarity with the facts and procedural history of this case, and the issues presented by this appeal.
Nunez pled guilty pursuant to a plea agreement, which stipulated that the applicable Guidelines sentencing range was 135-168 months in prison. The district court sentenced Nunez to 135 months in prison, at the bottom of the range. Nunez argues that her case, and "all pending cases involving sentencing issues" should be remanded for resentencing to give the judge the opportunity to reconsider the sentence in light of Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), a case decided after Nunez's sentencing. But, Nunez fails to explain how Gall allegedly affected district court judges' sentencing decisions in a case such as the one before us, except to say that Gall "clearly recognized a great discretion in the district court to depart from the advisory guidelines where appropriate after considering all of the factors set forth in 18 U.S.C. § 3553(a)." While Gall contains some statements regarding proper sentencing procedures by district court judges, see, e.g., Gall, 128 S.Ct. at 594, 596-597, 598, they essentially reiterate the previously established requirements under Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), all of which were complied with by the district court.
Under the terms of the plea agreement, moreover, Nunez agreed not to appeal "any sentence within or below the Stipulated Guidelines Range" set forth in the plea agreement. Because the Stipulated Guidelines Range in the plea agreement was 135-168 months in prison, and Nunez received a sentence of 135 months in prison, the waiver provision applies. see, e.g. United States v. Haynes, 412 F.3d 37, 38-39 (2d Cir. 2005) (per curiam) (holding waiver enforceable when appeal was filed post- Booker and plea agreement was signed pre- Booker). Nunez is therefore foreclosed from appealing her sentence.
For the foregoing treasons, the judgment of the District Court is hereby AFFIRMED.