UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: March 16, 2023 Decided: November 1, 2023)

Docket No. 22-178 _____________________________________

United States of America,

Appellee,

v.

Terry Lajeunesse,

Defendant-Appellant. _____________________________________ Before:

LEVAL, CHIN, and LEE, Circuit Judges.

Terry Lajeunesse, a defendant in a criminal case, appeals from the judgment of conviction entered by the United States District Court for the Northern District of New York (Glenn T. Suddaby, J.) convicting him on his plea of guilty to possession and receipt of child pornography, under 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) and 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), and obstruction of justice under 18 U.S.C. § 1512(c)(2), contending that his Fourth Amendment rights were violated by a probation officer’s search of his cell phone and a further search by New York State Police, and that the trial court erred in failing to allow him allocution at sentencing. The government contends that his claim as to sentencing allocution is precluded by the appeal waiver he agreed to as a part of his plea agreement. We reject the

1 government’s argument and REMAND for resentencing. We reject the defendant’s other arguments and AFFIRM the conviction.

JAMES P. EGAN, Assistant Federal Public Defender, Federal Public Defender’s Office, Syracuse, NY, for Defendant- Appellant.

PAUL D. SILVER, Assistant U.S. Attorney of Counsel for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

LEVAL, Circuit Judge:

Terry Lajeunesse, a defendant in a criminal case, appeals from the judgment of conviction entered by the United States District Court for the Northern District of New York (Glenn T. Suddaby, J.) 1 convicting him on his plea of guilty to one count of possession of child pornography, under 18 U.S.C. § 2252A(a)(5)(B) and (b)(2); one count of receipt of child pornography, under 18 U.S.C. § 2252A(a)(2)(A) and (b)(1); and one count of obstruction of justice, under 18 U.S.C. § 1512(c)(2). He contends that his Fourth Amendment

1 Judge Norman A. Mordue ruled on Lajeunesse’s motion to suppress. Judge Suddaby presided over Lajeunesse’s plea proceedings and sentencing hearings. 2 rights were violated by a New York probation officer’s search of his cell phone and a further search by New York State Police, and that the trial court erred in failing to allow him allocution at sentencing. He was sentenced primarily to 198 months of imprisonment.

As part of his plea agreement, Lajeunesse retained the right to appeal the district court’s denial of his motion to suppress the evidence seized in two searches of his cell phone—one by probation officers, and a second search by the police—but otherwise waived his rights to appeal any sentence “to a term of imprisonment of 210 months or less.” App’x at 193–94. In response to Lajeunesse’s sentencing appeal, the government contends that, as his sentence was less than 210 months, this claim is barred by his appeal waiver. We reject the government’s argument and therefore remand for resentencing, at which Lajeunesse will be afforded the opportunity to addr