UNITED STATES of America, Appellee, v. Timothy HOFFMAN, Defendant-Appellant, 548 F. App'x 18

SUMMARY ORDER Defendant-Appellant Timothy Hoffman appeals from the November 20, 2012 judgment of the District Court convicting him, on a guilty plea, of possession of a firearm by a convicted felon, and sentencing him principally to fifteen months’ imprisonment. Hoffman contends that the District Court erred by failing to address the waiver of the right to appeal contained in Hoffman’s plea agreement during the plea colloquy, and that the fifteen-month sentence was substantively unreasonable. Familiarity with the factual and procedural background is presumed. DISCUSSION Before accepting a guilty plea, Federal Rule of Criminal Procedure ll(b)(l)(

N) requires that the court “inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed.R.Crim.P. 11(b)(1)(N); United States v. Cook, 722 F.3d 477, 480 (2d Cir.2013). Rule 11(b)(1)(

N) violations that are not objected to at the time of the plea are subject to plain error review under Rule 52(

b) of the Federal Rules of Criminal Procedure. Cook, 722 F.3d at 481 (citing United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)). “Plain error” review requires a defendant to demonstrate that (1) there was error, (2) the error was plain, (3) the error prejudicially affected his substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Id. at 481. Ultimately, to prevail a defendant must demonstrate a reasonable probability that, but for the error, he would not have entered the plea. Id.

It is undisputed that the District Court did not discuss the appeal waiver with ■ Hoffman during the plea proceeding, or even expressly confirm that the defendant had read and understood the terms of the plea agreement. Neither party objected to this omission. While the failure to address Hoffman’s waiver of appeal was a clear violation of Rule ll(b)(l)(

N) and, thus, an error that was “plain,” Hoffman has not argued that the error prejudicially affected his substantial rights, much less that, but for the error, he would not have entered the plea. Accordingly, we conclude that the appellate waiver is enforceable, and that Hoffman has forfeited his right to appeal his sentence of fifteen months. CONCLUSION We have reviewed all of Hoffman’s arguments on appeal and, for the reasons set out above, we AFFIRM the November 20, 2012 judgment of the District Court. .

Hoffman's plea agreement waived, in relevant part, the right "to appeal or collaterally attack his conviction and any sentence of imprisonment of 21 months or less, including ... the reasonableness of the sentence imposed." App’x 23. . Hoffman urges us to follow United States v. Murdock, 398 F.3d 491 (6th Cir.2005), which also involved a wholesale failure to address an appellate waiver.

However, the court in Murdock explicitly rejected the notion that "a defendant could always prevail [under the plain error inquiry] simply by alleging and proving the Rule 11 violation,” and stated that other events might establish that the defendant knowingly entered into the plea agreement. Id. at 497-98. Here, Hoffman does not argue that he was unaware of or failed to understand the waiver of appeal contained in the plea agreement.

Moreover, the Guidelines range of 15-21 months was discussed at the plea proceeding, and Hoffman and his lawyer stated at the colloquy that Hoffman understood the consequences of pleading guilty. App’x 44-46. .

Although we need not address the reasonableness of the sentence, we note that the District Court's decision to impose the lowest term of imprisonment under the advisory guidelines — apparently based on defendant's unwillingness to accept "that I can't protect my business, I can’t protect my friends from gang violence,” App’x 64-65 — was not a decision outside "the range of permissible decisions,” as would be required for us to find that the sentence was substantively unreasonable. United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (internal quotation marks and citation omitted).