     15-1031
     United States v. Blackwell

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DENNY CHIN,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-1031
16
17       TAYSHAWN BLACKWELL, a/k/a JAYVON POPE,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Colleen P. Cassidy, Federal
22                                             Defenders of New York, Inc., New
23                                             York, NY.
24
25       FOR APPELLEE:                         Benet Kaerney (with Karl Metzner
26                                             on the brief), Assistant United
27                                             States Attorneys, for Preet
28                                             Bharara, United States Attorney

                                                  1
 1                              for the Southern District of New
 2                              York, New York, NY.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Keenan, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Tayshawn Blackwell appeals from a sentence and judgment
12   of conviction of the United States District Court for the
13   Southern District of New York (Keenan, J.). We assume the
14   parties’ familiarity with the underlying facts, the
15   procedural history, and the issues presented for review.
16
17        1. Blackwell argues that curfew (as a condition of
18   probation) and incarceration are equivalent for sentencing
19   purposes. He argues that the 36-month period of probation
20   with curfew, in addition to his 36–month term of
21   imprisonment, brings his total sentence of incarceration to
22   72 months, which violated the parsimony clause that a
23   sentence be “sufficient, but not greater than necessary.”
24   See 18 U.S.C. § 3553(a).
25
26        The Government argues that Blackwell waived this
27   challenge to his curfew in his plea agreement. Appellate
28   waivers are applied “narrowly,” and we construe them
29   “strictly against the Government.” United States v.
30   Oladimeji, 463 F.3d 152, 157 (2d Cir. 2006). The waiver
31   here does not unambiguously preclude defendant from
32   challenging the curfew condition imposed on his supervised
33   release, and so we will consider the argument on its merits.
34   See United States v. Tourloukis, 558 F. App’x 112, 114 (2d
35   Cir. 2014) (summary order).
36
37        Since Blackwell did not raise this objection below, we
38   review for plain error. See United States v. Gomez, 705
39   F.3d 68, 75 (2d Cir. 2013). For an error to be “plain,” it
40   “must be so obvious that ‘the trial judge and prosecutor
41   were derelict in countenancing it, even absent the
42   defendant’s timely assistance in detecting it.’” United
43   States v. Wagner–Dano, 679 F.3d 83, 94 (2d Cir. 2012)
44   (quoting United States v. Frady, 456 U.S. 152, 163 (1982)).
45   “A reviewing court typically will not find such error where
46   the operative legal question is unsettled.” United States
47   v. Weintraub, 273 F.3d 139, 152 (2d Cir. 2001) (finding that

                                  2
 1   the law was not “plain” where there was no precedent from
 2   this Circuit or the Supreme Court).
 3
 4        Blackwell relies on United States v. Leaphart, 98 F.3d
 5   41, 42–43 (2d Cir. 1996), however that case did not hold
 6   that home detention and a curfew condition are equivalent.
 7   The Sentencing Guidelines explicitly distinguish between the
 8   two: U.S.S.G. § 5D1.3(e)(2) refers to “home detention” (and
 9   specifies that it can only be imposed as a condition of
10   supervised release as a “substitute for imprisonment,” and
11   § 5D1.3(e)(5) refers to “curfew” with no such qualification,
12   defining it as “restricting the defendant to his place of
13   residence during evening and nighttime hours.” At some
14   point, it stands to reason that a curfew condition would be
15   the functional equivalent of home detention. However, the
16   length of curfew at issue here (the mostly sleeping hours
17   from 9 p.m. until 6 a.m.) does not compel an inference of
18   home confinement; so in this case we need not reach the
19   issue of when, and under what conditions, curfew is
20   equivalent to home detention. See also United States v.
21   Haynesworth, 568 F. App’x 57, 60-61 (2d Cir. 2014) (summary
22   order) (rejecting argument that curfew was equivalent to
23   home detention for sentencing purposes).
24
25        2. Blackwell argues that pursuant to Johnson v. United
26   States, 135 S. Ct. 2551 (2015), and Johnson v. United
27   States, 559 U.S. 133 (2010), neither of his state robbery
28   convictions are “crimes of violence” as that term is defined
29   in the Guidelines, and that his Guidelines range was
30   therefore erroneously calculated. Unlike Blackwell’s curfew
31   argument, this argument is foreclosed by his appellate
32   waiver.
33
34        “Waivers of the right to appeal a sentence are
35   presumptively enforceable.” United States v. Arevalo, 628
36   F.3d 93, 98 (2d Cir. 2010). A defendant “who has secured
37   the benefits of a plea agreement and knowingly and
38   voluntarily waived the right to appeal a certain sentence”
39   may not “then appeal the merits of a sentence conforming to
40   the agreement.” United States v. Salcido-Contreras, 990
41   F.2d 51, 53 (2d Cir. 1993). The plea agreement stipulated
42   that Blackwell “committed the instant offense subsequent to
43   sustaining one felony conviction for a crime of violence.”1


         1
              A second robbery conviction was discovered while
     the Pre-Sentence Investigation Report was being prepared,
                                  3
 1   App’x at 10. That stipulation resulted in a Guidelines
 2   range of 30 to 37 months under the terms of the plea
 3   agreement. Id. at 11. At sentencing, the district court
 4   decided to follow the plea agreement and sentenced Blackwell
 5   to 36 months imprisonment. Because Blackwell’s sentence
 6   conformed to his plea agreement, he received the benefit of
 7   that agreement and he has waived any challenge to his
 8   sentence on the basis of Johnson. See United States v.
 9   Morgan, 406 F.3d 135, 137 (2d Cir. 2005) (holding that the
10   “inability to foresee that subsequently decided cases would
11   create new appeal issues does not supply a basis for failing
12   to enforce an appeal waiver. On the contrary, the
13   possibility of a favorable change in the law after a plea is
14   simply one of the risks that accompanies pleas and plea
15   agreements.”).
16
17        For the foregoing reasons, and finding no merit in
18   Blackwell’s other arguments, we hereby AFFIRM the judgment
19   of the district court.
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23




     and this conviction was considered at sentencing in
     calculating the applicable Guidelines range. However, the
     district court (without specifying whether it was a variance
     or a departure) decided to impose a sentence that fell
     within the lesser Guidelines range contained in the plea
     agreement, which relied upon only one prior conviction for
     robbery. Because Blackwell was sentenced within the
     Guidelines range contained in the plea agreement, he cannot
     prevail on a Johnson claim for the second robbery
     conviction, which was never counted against him in arriving
     at his sentence.
                                  4
