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UNITED STATES OF AMERICA, Appellee, v. RICKY J. BRICKHOUSE, Defendant-Appellant

DENNIS JACOBS

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of April, two thousand thirteen.

PRESENT: DENNIS JACOBS ,


Chief Judge
,


AMALYA L. KEARSE,


SUSAN L. CARNEY,


Circuit Judges
.


FOR APPELLANT:

FRANCISCO E. CELEDONIO, Law


Office of Francisco E.


Celedonio, Esq., New York, New


York.


FOR APPELLEE:

NICHOLAS L. MCQUAID (Katherine


Polk Failla, on the brief),


Assistant United States


Attorneys, for Preet Bharara,


United States Attorney for the


Southern District of New York,


New York, New York.


Appeal from a judgment of the United States District Court for the Southern District of New York (Karas, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that this appeal from the judgment of the district court be DISMISSED.

Ricky J. Brickhouse appeals from the judgment of the United States District Court for the Southern District of New York (Karas, J.), sentencing him to 120 months' imprisonment for conspiracy to distribute crack cocaine and to 84 months' imprisonment, to be served concurrently, for distribution and possession with intent to distribute crack cocaine. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

As an initial matter, the prior decision by a motions panel of this Court to deny the government's motion to dismiss this appeal on the basis of Brickhouse's appeal waiver (see Mot. Order, United States v. Brickhouse, No. 11-1698 (Dkt. No. 83) (Aug. 15, 2012)) is not binding on the merits panel. See Rezzonico v. H&R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999).

Brickhouse agreed to waive his right to appeal if he was sentenced to a prison term of 150 months or less, as he was. The colloquy at Brickhouse's plea hearing makes clear that the appeal waiver was knowing and voluntary (see Plea Hr'g Tr. 36-38 (Sept. 10, 2010)), and such a waiver is not contrary to public policy. Brickhouse's appeal waiver was valid when his plea was entered, and the waiver did not lose its effectiveness when the district court in a subsequent proceeding made statements arguably inconsistent with that waiver. No justifiable reliance could have been placed on such post-plea statements. See United States v. Fisher, 232 F.3d 301, 304-05 (2d Cir. 2000).

Even though the Supreme Court has since determined, in Dorsey v. United States, 132 S. Ct. 2321 (2012), that the Fair Sentencing Act of 2010 may apply retroactively to criminal conduct completed before the Act's effective date, the change in law does not render Brickhouse's appellate waiver unenforceable. See United States v. Harrison, 699 F.3d 158, 159 (2d Cir. 2012); United States v. Lee, 523 F.3d 104, 107 (2d Cir. 2008).

For the foregoing reasons, and finding no merit in Brickhouse's other arguments, we DISMISS the appeal.

FOR THE COURT:


CATHERINE O'HAGAN WOLFE, CLERK


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United States v. Brickhouse
(Apr 4, 2013)