United States Court of Appeals For the Second Circuit

August Term 2023 Argued: February 15, 2024 Decided: August 21, 2024

No. 22-2081

UNITED STATES OF AMERICA

Appellee,

v.

VICTOR RIVERA, AKA SEALED DEFENDANT 1,

Defendant-Appellant,

MICHOLS PENA, AKA SEALED DEFENDANT 2, JOHAN ARAUJO

Defendants.

Appeal from the United States District Court for the Southern District of New York

1 No. 20-cr-600, Alvin K. Hellerstein, Judge.

Before: Jacobs, Chin, and Nathan, Circuit Judges.

Defendant-Appellant Victor Rivera appeals from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J.) after pleading guilty pursuant to a plea agreement to participating in a Hobbs Act robbery conspiracy. On appeal, Rivera argues (1) that the Government breached the terms of the plea agreement, (2) that his sentence is procedurally and substantively unreasonable, and (3) that this case should be remanded for resentencing in light of an amendment to the Guidelines after his sentencing. We conclude that none of Rivera’s challenges prevail. Notably, although we find that the Government breached the plea agreement when it sought a higher Guidelines range than the one stipulated to in Rivera’s plea agreement based on criminal history available to it at the time of the plea, we conclude that this error does not amount to a “plain” error under the applicable standard. Accordingly, we AFFIRM.

ANNA MARGARET SKOTKO, Skotko Law PLLC, New York, NY, for Defendant-Appellant.

ANDREW K. CHAN (Mathew Andrews, Danielle Renee Sassoon, Thomas John Wright, Alison Moe, on the brief), Assistant United States Attorneys, for Damian Williams, United States

2 Attorney for the Southern District of New York, New York, NY, for Appellee.

NATHAN, Circuit Judge: The Supreme Court has long acknowledged the “essential” role that plea bargaining plays in “the administration of justice.” Santobello v. New York, 404 U.S. 257, 260 (1971). Our Court has also encouraged prosecutors to inform defendants of their likely sentence range under the federal Sentencing Guidelines to enable defendants to more “fully appreciate the consequences of their pleas.” United States v. Pimentel, 932 F.2d 1029, 1032 (2d Cir. 1991). It is therefore unsurprising that plea agreements today are commonly drafted to include stipulated sentence ranges that the parties agree not to dispute at sentencing. While stipulating to certain sentence ranges in a plea agreement can reduce “claims of unfair surprise” from defendants, United States v. Wilson, 920 F.3d 155, 163 (2d Cir. 2019) (quotation marks omitted), this is true only if the government actually keeps its promises. The question in this appeal is whether the government breaches a plea agreement when it stipulates to a sentence range based on information “available” to it, then advocates for a substantially higher sentence based on criminal history information that