14-1258
`United States v. Taleek Brooks
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`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 28 day of May, two thousand fifteen.
`th
`PRESENT: DENNIS JACOBS,
`ROSEMARY S. POOLER,
`PETER W. HALL,
`Circuit Judges.
`- - - - - - - - - - - - - - - - - - - -X
`UNITED STATES OF AMERICA,
`Appellee,
`-v.-
`
`TALEEK BROOKS,
`Defendant-Appellant.
`- - - - - - - - - - - - - - - - - - - -X
`FOR APPELLANT:
`Thomas F.X. Dunn, New York, New
`York.
`Robert T. Polemeni (with David
`C. James, on the brief), for
`Kelly T. Currie, Acting United
`States Attorney for the Eastern
`
`FOR APPELLEE:
`
`14-1258
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`District of New York, Brooklyn,
`New York.
`Appeal from a judgment of the United States District
`Court for the Eastern District of New York (Mauskopf, J.).
`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
`AND DECREED that the appeal be DISMISSED.
`Taleek Brooks appeals from the judgment of the United
`States District Court for the Eastern District of New York
`(Mauskopf, J.), sentencing him to 50 years’ imprisonment
`followed by a life term of supervised release, after he pled
`guilty to sexual exploitation of a child and distribution of
`child pornography. We assume the parties’ familiarity with
`the underlying facts, the procedural history, and the issues
`presented for review.
`In brief, Brooks: possessed thousands of videos and
`images depicting violent child pornography, made those
`videos and images available for others to download over the
`internet throughout a seven-year period, produced grotesque
`child pornography in a classroom of the public elementary
`school where he worked as a teacher’s aide, and repeatedly
`sexually assaulted a ten-year-old boy who attended that
`elementary school.
`A 2012 grand jury indictment charged Brooks with seven
`counts of sexual exploitation of a child, in violation of 18
`U.S.C. § 2251(a) and (e); four counts of distribution of
`child pornography, in violation of 18 U.S.C. § 2252(a)(2);
`and one count of possession of child pornography, in
`violation of 18 U.S.C. § 2252(a)(4)(B). In February 2013,
`Brooks pled guilty pursuant to a plea agreement to one
`exploitation count and one distribution count. The plea
`agreement recited the government’s estimation that “the
`effective Guidelines range is 15 - 50 years,” and
`acknowledged the statutory maximum sentence for each count
`to which Brooks was pleading: 30 years’ imprisonment for the
`exploitation count, and 20 years’ imprisonment for the
`distribution count. The plea agreement also included an
`appeal waiver “in the event the Court imposes a term of
`imprisonment of 50 years or less.”
`After pleading guilty and before sentencing, Brooks
`filed a pro se letter explaining to the district court that
`he had pled guilty only because he lacked confidence in his
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`counsel. In response to Brooks’s letter, the district court
`relieved defense counsel in July 2013, appointed a new
`attorney, and adjourned the sentencing date so that Brooks
`and his new attorney could discuss whether to move to
`withdraw the plea. The new attorney informed the court in
`November 2013 that Brooks had decided against moving to
`withdraw his guilty plea, and in December the district court
`accepted the guilty plea.
`At Brooks’s sentencing, the district court found that
`the U.S. Sentencing Guidelines advisory range was 30 to 50
`years’ imprisonment, and sentenced Brooks to 50 years’
`imprisonment, which was the statutory maximum.
`On appeal, Brooks argues that: (1) he should be
`released from the appeal waiver in his plea agreement
`because his counsel was ineffective in advising him to enter
`the plea agreement, and (2) his sentence is substantively
`unreasonable.
`“When faced with a claim for ineffective assistance of
`counsel on direct appeal, we may: (1) decline to hear the
`claim, permitting the appellant to raise the issue as part
`of a subsequent petition for writ of habeas corpus pursuant
`to 28 U.S.C. § 2255; (2) remand the claim to the district
`court for necessary factfinding; or (3) decide the claim on
`the record before us.” United States v. Adams, 768 F.3d
`219, 226 (2d Cir. 2014) (quoting United States v. Tarbell,
`728 F.3d 122, 128 (2d Cir. 2013)). Mindful that the first
`option is generally preferred, see United States v.
`Oladimeji, 463 F.3d 152, 154 (2d Cir. 2006), we dismiss that
`claim without prejudice to Brooks’s right to advance it in a
`collateral proceeding under
`§ 2255, or otherwise.
`Under such circumstance, we will provisionally enforce
`the appeal waiver “unless and until [the defendant] prevails
`(by a habeas petition) in proving that his appeal waiver
`should be voided because he received ineffective assistance
`of counsel.” Oladimeji, 463 F.3d at 155; see also United
`States v. Monzon, 359 F.3d 110 (2d Cir. 2004). Because the
`waiver remains intact for the purposes of this appeal, we
`need not reach Brooks’s challenge to the substantive
`reasonableness of his sentence.
`Even if the waiver is otherwise unenforceable, see
`United States v. Goodman, 165 F.3d 169, 174 (2d Cir. 1999),
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`Brooks would not be entitled to relief because his
`sentencing challenge fails on the merits. “The district
`courts have discretion to select an appropriate sentence,
`and in doing so are statutorily bound to consider the
`factors listed in [18 U.S.C.] § 3553(a), including the
`advisory Guidelines range.” United States v. Cavera, 550
`F.3d 180, 188 (2d Cir. 2008). “[O]ur substantive review of
`a sentence is akin to review under an abuse-of-discretion
`standard,” whereby a district court abuses its discretion if
`its sentence is “based on an erroneous view of the law or on
`a clearly erroneous assessment of the evidence, or a
`decision that cannot be located within the range of
`permissible decisions.” United States v. Park, 758 F.3d
`193, 199–200 (2d Cir. 2014) (internal quotation marks and
`alteration omitted). Here, the district court did not abuse
`its discretion by imposing a 50-year sentence, at the top of
`the effective Guidelines range. After carefully considering
`the Section 3553(a) factors, the district court determined
`that such a term of imprisonment was sufficient, but not
`greater than necessary to serve the purposes of sentencing.
`See United States v. Dorvee, 616 F.3d 174, 182 (2d Cir.
`2010).
`
`For the foregoing reasons, and finding no merit in
`Brooks’s other arguments, we hereby DISMISS the appeal.
`FOR THE COURT:
`CATHERINE O’HAGAN WOLFE, CLERK
`
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