UNITED STATES of America, Appellee, v. Cyle KREPPS, aka Black, aka Trick, aka Durell, aka Dred, Defendant-Appellant, 590 F. App'x 72

Pursuant to a plea agreement, Defendant-Appellant Cyle Krepps (“Krepps”) was convicted in the United States District Court for the Western District of New York of (1) conspiracy to possess with intent to distribute two hundred eighty grams or more of cocaine base, and (2) possession of a firearm in furtherance of a drug trafficking crime. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. In the plea agreement, the parties confirmed that that the aggregated sentencing range was 181 to 210 months and agreed to a 196-month sentence pursuant to Rule 11(c)(1)(

C) of the Federal Rules of Criminal Procedure. The plea agreement also contained an appeal waiver provision which provided that Krepps “knowingly waives the right to appeal and collaterally attack any component of a sentence imposed by the Court which falls within or is less than the sentencing range for imprisonment, a fine and supervised release set forth [herein], notwithstanding the manner in which the Court determines the sentence.” J.A. 27. At his change of plea hearing, Krepps acknowledged that he understood the appeal waiver.

After finding that Krepps was fully competent and capable of entering a knowing and voluntary plea, the court accepted his guilty plea. The court ultimately imposed the agreed-upon 196-month sentence. Notwithstanding the waiver, Krepps appeals claiming that the district court violated Rule S2(i)(8)(

B) of the Federal Rules of Criminal Procedure by failing to address a concern defense counsel raised at sentencing regarding the inclusion of certain information in Krepps’s presentence report. We need look no further than our ruling in United States v. Arevalo, 628 F.3d 98 (2d Cir.2010), to determine that the appeal waiver precludes Krepps’s claim.

Arevalo involved an analogous appeal waiver which provided that the defendant “agrees not to file an appeal or otherwise challenge ... the conviction or sentence in the event that the Court imposes a term of imprisonment of 195 months or below.” 628 F.3d at 97 (alteration in original). The defendant in that case appealed his 157-mont sentence, arguing that the district court violated Rule 32(i)(3) by failing to rule on disputed portions of the presentence report. We held that the waiver applied to and precluded defendant’s “claim of Rule 32(i)(3) error” and dismissed the appeal. Id.

We conclude, therefore, under the rationale of Arevalo, Krepps’s Rule 32(i)(3) claim is precluded by his appeal waiver. We have considered Krepps’s remaining arguments and find them to be without merit. The appeal is DISMISSED. . Krepps did not object to any particular portion of the presentence report, either prior to or at sentencing, and attorney below did not "request” or "explicitly ask[]” the court to remove information from the presentence report as he now claims, Appellant’s Br. 6.

Counsel below aptly characterized the statement that forms the basis of this appeal as a mere expression of general "concern,” J.A. 54. Moreover, when the district court declined to address that concern, Krepps did not argue, as he now does, that the district court was required to act by Rule 32(i)(3).