United States v. Encarnacion ( 1998 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1576
UNITED STATES,
Appellee,
v.
EMILIO ENCARNACION,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Harry C. Batchelder, Jr., Henry H. Rossbacher, Tracy W. Young,
and Rossbacher & Associates on brief for appellant.
Paul M. Gagnon, United States Attorney, and Jean B. Weld,
Assistant U.S. Attorney, on Motion for Summary Disposition.
December 23, 1998
Per Curiam. Emilio Encarnacion appeals from the
district court's denial of his motion to withdraw his guilty
plea. He also seeks resentencing on the ground that the
testimony provided by cooperating witnesses at his sentencing
hearing was obtained in exchange for leniency granted by the
government, in violation of 18 U.S.C. 201(c)(2). The
government has moved for summary affirmance of appellant's
conviction and sentence. We grant the motion.
I. Motion to Withdraw
The reason appellant has given for seeking withdrawal
of his guilty plea is that he received ineffective assistance
of counsel from the attorney who represented him in the months
leading up to and including the time that he entered his plea.
"Even prior to sentencing, defendants who maintain such a
position must meet the accepted tests for ineffective
assistance before being allowed to withdraw pleas on this
basis." United States v. Pellerito, 878 F.2d 1535, 1537-38 (1st
Cir. 1989). The district court concluded that appellant had
failed to meet that test and found, instead, that appellant's
attorney's
competence was in the range of competence
required of counsel in criminal cases and
that his performance did not fall below
the standard of performance of reasonably
proficient counsel. Indeed, [the
attorney] performed his duties as counsel
well under the difficult circumstances
created by an uncooperative and
manipulative client.
District Court Order, February 26, 1998, Docket No. 99.
-2-
We review the district court's determination under an
abuse of discretion standard. See United States v. Isom, 85
F.3d 831, 834 (1st Cir. 1996). "The trial court's subsidiary
factfinding in connection with plea-withdrawal motions can be
set aside only for clear error. As in kindred contexts,
'[w]here there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous.'"
Pellerito, 878 F.2d at 1538 (citation omitted). We have
carefully reviewed the entire record, including the transcripts
of the guilty plea hearing and the hearing on appellant's
motion to withdraw his guilty plea. Our review persuades us
that the district court's findings were not clearly erroneous.
Nor did the district court abuse its discretion in rejecting,
on the basis of those findings, appellant's motion to withdraw
his guilty plea. The denial of that motion is affirmed.
II. Resentencing Request
Appellant argues that he should be resentenced
because the testimony of the witnesses at his sentencing
hearing "was obtained through lenient treatment by the
government" in violation of 18 U.S.C. 201. Appellant's Brief,
p. 24. Because this argument was not raised before the
district court, we apply plain-error review. See United Statesv. Bradstreet, 135 F.3d 46, 50 (1st Cir.), cert. denied, 118
S.Ct. 1805 (1998); Fed.R.Crim.P. 52(b). "To be correctable
under Rule 52(b), an error or defect raised for the first time
on appeal must be 'plain,' meaning 'clear' or 'obvious,' at the
time of appellate consideration [among other requirements]."
Id. (citations omitted). The alleged error does not meet that
standard. In support of his argument, appellant relies on a
decision by the Tenth Circuit which has been vacated and
rehearing en banc granted. See United States v. Singleton, 144
F.3d 1343 (10th Cir. 1998), rehearing en banc granted, opinion
vacated (July 10, 1998). Other courts addressing similar
challenges have rejected the reasoning of the Singletondecision. See United States v. Juncal, 1998 WL 525800(S.D.N.Y.); United States v. Arana, et al., 1998 WL 420673(E.D.Mich.); United States v. Guillaume, 1998 WL 462199 (S.D.
Fla.). Under these circumstances, the error (if any) is not
"plain." Appellant's request for resentencing is denied.
The government's motion for summary disposition is
granted. See Loc. R. 27.1.