U.S. v. Garcia, Docket No. 97-1554

• Decision Date: 02 February 1999
• Docket Number: Docket No. 97-1554
• Parties: UNITED STATES of America, Appellee, v. Fatima GARCIA, a/k/a Fatima Garcia-Nuine, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 519

166 F.3d 519

UNITED STATES of America, Appellee, v. Fatima GARCIA, a/k/a Fatima Garcia-Nuine, Defendant-Appellant.

Docket No. 97-1554.

United States Court of Appeals Second Circuit.

Submitted Feb. 2, 1999.

Decided Feb. 2, 1999.

Richard Jasper, New York, NY, for Defendant-Appellant.

Jennifer L. Borum, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney, and Dietrich L. Snell, Assistant United States Attorney, of counsel ), for Appellee.

Before: CABRANES and STRAUB, Circuit Judges, and McCURN, District Judge. ^*

PER CURIAM:

Fatima Garcia appeals from the sentence imposed by the United States District Court for the Southern District of New York (Michael B. Mukasey, Judge ) after Garcia pled guilty to illegal re-entry following deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. The District Court denied Garcia's motion for a downward departure based on physical condition (U.S.S.G. § 5H1.4) and imposed a sentence at the bottom of the applicable Guidelines range. Garcia contends on appeal that the District Court did not have competent evidence to support a factual finding upon which the denial of departure was partially based. We conclude that Garcia's claim of a due process violation is meritless, and an illegitimate attempt to circumvent her plea agreement waiver of appeal, as well as the general non-appealability of a district court's refusal to depart from the applicable Guidelines sentencing range. Accordingly, we dismiss the appeal.

I.

On May 22, 1996, Garcia entered into a written plea agreement with the United States pursuant to which she agreed to plead guilty to a one-count indictment charging illegal re-entry following deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. The parties stipulated to a United States Sentencing Guidelines range of 41 to 51 months imprisonment, which corresponds to Offense Level 20 and Criminal History Category III. The plea agreement explicitly permitted Garcia to move for a downward departure based upon her physical condition, pursuant to U.S.S.G. § 5H1.4. ¹ However, the agreement further provided that "the defendant will not appeal any sentence within or below the stipulated Sentencing Guidelines range, whether or not the Court denies a motion for downward departure on the basis of the defendant's physical condition." Garcia pled guilty before Judge Allen G. Schwartz, who accepted the plea after finding, based upon an extensive Rule 11 colloquy, that it was knowing and voluntary. Garcia does not challenge this finding.

Garcia moved for a § 5H1.4 downward departure, which the Government opposed. Judge Mukasey, the sentencing judge, denied the departure based in part upon a factual finding that the Bureau of Prisons ("BOP") was capable of treating Garcia's various medical conditions. Garcia was sentenced to a 41-month term of imprisonment, which was at the low end of the applicable Guidelines sentencing range.

In this appeal, Garcia challenges Judge Mukasey's factual finding concerning BOP's treatment capacities. At the very least, the finding was supported by direct evidence of (1) Garcia's various medical conditions, and (2) the types of medical conditions--and combinations thereof--that BOP generally is equipped to treat. Nevertheless, Garcia argues that her due process rights were violated because Judge Mukasey allegedly reached his decision without evidence of an individualized factual determination by a medical expert, based upon a review of Garcia's records, that BOP could adequately treat Garcia.

II.

A defendant's waiver of the right to appeal a sentence within an agreed upon Guidelines range generally is enforceable. See, e.g., United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir.1998) (per curiam). Such waivers may be avoided if they are not knowing and voluntary, or if the Government breaches the plea agreement. See, e.g., United States v. Rosa, 123 F.3d 94, 98 (2d Cir.1997). In addition, "[p]lea agreements are subject to the public policy constraints that bear upon the enforcement of other kinds of contracts." United States v. Yemitan, 70 F.3d 746, 748 (2d Cir.1995); see also United States v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994) ("[A] waiver of the right not to be sentenced on the basis of a constitutionally impermissible factor may be invalid."). Similarly, we have stated that "[a]t some point, ... an arbitrary practice of sentencing without proffered reasons would amount to an abdication...