United States v. Cook ( 2015 )

14-0203-cr
United States v. Cook et al.
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 9th day of September, two thousand fifteen.
5
6 PRESENT: RALPH K. WINTER,
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 14-0203
16
17 MARCEL MALACHOWSKI,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: ROBIN C. SMITH, LAW OFFICE OF
22 ROBIN C. SMITH, San Rafael,
23 California.
24
25 FOR APPELLEE: PAUL D. SILVER (with Jeffrey C.
26 Coffman on the brief) for
27 Richard S. Hartunian, United
28 States Attorney for the Northern
1
1 District of New York, Albany,
2 New York.
3
4
5 Appeal from a judgment of the United States District
6 Court for the Northern District of New York (McAvoy, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11
12 Marcel Malachowski appeals from the judgment of the
13 United States District Court for the Northern District of
14 New York (McAvoy, J.), sentencing him to 178 months of
15 imprisonment to run concurrently with the 78-month prison
16 sentence imposed for separate offenses.1 We assume the
17 parties’ familiarity with the underlying facts, the
18 procedural history, and the issues presented for review.
19
20 Malachowski was prosecuted for his role in a continuing
21 criminal enterprise that smuggled and subsequently
22 distributed thousands of kilograms of marijuana into the
23 United States from Canada. A. 87. He entered a plea of
24 guilty to each count of the indictment. A. 88-105. On
25 appeal, Malachowski challenges the district court’s denial
26 of his motion to withdraw his guilty plea on the ground of
27 procedural defects. We review a district court’s denial of
28 a motion to withdraw a guilty plea for an abuse of
29 discretion. United States v. Carreto, 583 F.3d 152, 157 (2d
30 Cir. 2009).
31
32 Malachowski first contends that because he was
33 inadequately advised that count three (continuing criminal
34 enterprise) carried a mandatory minimum sentence of 20 years
35 of imprisonment, his plea was involuntary. At the plea
36 colloquy, the district court explicitly asked the prosecutor
37 to advise Malachowski “what the maximum or any minimum
38 penalty would be for the count involved.” A. 110. In
39 response, the prosecutor informed Malachowski that for
40 “[c]ount [t]hree, the continuing criminal enterprise, the
41 maximum term of imprisonment is a mandatory 20 years, up to
1
Malachowski separately appealed the sentence imposed
based on his gun-related offenses and oral argument with
respect to this appeal, United States v. Malachowski, No.
13-0443, was heard in tandem with the present case.
2
1 life.” A. 110-11. Malachowski argues that because the
2 prosecutor did not explicitly use the word “minimum,” his
3 plea was neither knowing nor voluntary. Since Malachowski
4 did not raise this particular objection in the district
5 court, the plain error standard applies to his claim. See
6 United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012)
7 (“Rule 11 violations that are not objected to at the time of
8 the plea are subject to plain error review . . . .”). And
9 “to show that a Rule 11 violation was plain error, the
10 defendant must demonstrate that there is a reasonable
11 probability that, but for the error, he would not have
12 entered the plea.” Id. (internal quotation marks omitted).
13
14 Malachowski’s contention is without merit. In the
15 context of the prosecutor’s statement, “mandatory” clearly
16 modifies “20 years,” especially considering that the
17 prosecutor was being asked to advise Malachowski as to the
18 minimum and maximum penalties for count three. See United
19 States v. Cook, 722 F.3d 477, 482 (2d Cir. 2013) (noting
20 that “[t]he most logical understanding” of the plea colloquy
21 at issue foreclosed defendant’s Rule 11 challenge).
22 Malachowski also cites his own counsel’s motion for a
23 downward departure, which, according to Malachowski,
24 signified that the potential sentence carried no mandatory
25 minimum. A. 221. To the extent such a claim suggests
26 counsel was ineffective, Malachowski suffered no prejudice
27 because the district court promptly reiterated: “You’re
28 right and I read [the motion] and if we weren’t dealing with
29 a statutory mandatory minimum, those points would be key.”
30 Id.2 Malachowski’s argument must accordingly be rejected,
31 especially in view of the steep burden he must carry.
32
33 Malachowski also complains that the government’s
34 proposed plea agreement prior to his entry of his guilty
35 plea required that he stipulate to a firearms increase,
36 pursuant to Section 2D1.1(b)(1) of the Sentencing
37 Guidelines. A. 72. According to Malachowski, the only
2
Moreover, because Malachowski entered his plea of
guilty pro se and counsel at this point was operating only
as standby counsel before being reappointed, Malachowski is
precluded from bringing an ineffective assistance claim
arising from this conduct. See United States v. Morrison,
153 F.3d 34, 55 (2d Cir. 1998) (“[W]ithout a constitutional
right to standby counsel, a defendant is not entitled to
relief for the ineffectiveness of standby counsel.”).
3
1 basis for this stipulation was the statement of his co-
2 defendant, Sean Herrmann, that Malachowski placed a gun to
3 Herrmann’s head, a statement that Herrmann had recanted. A.
4 223. Malachowski believes that the stipulation in his
5 contemplated plea agreement violated his due process rights.
6
7 This argument is erroneous for two independent reasons.
8 It is undisputed that the proposed plea agreement was
9 rejected by Malachowski because he refused to agree to the
10 firearms stipulation. A. 223. It is well-settled that
11 criminal defendants have “no constitutional right to plea
12 bargain.” Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
13 So, once the government withdrew its plea offer, the
14 government had no obligation to re-offer Malachowski the
15 same deal to account for the falsity in Herrmann’s
16 statement. See United States v. Gonzalez-Vazquez, 219 F.3d
17 37, 42 (1st Cir. 2000) (“[T]he government was under no
18 obligation to leave its original plea offer open.”). More
19 importantly, Malachowski’s assertion that Herrmann’s
20 statement was the only basis for the firearms enhancement is
21 belied by his counsel’s recommendation that Malachowski’s
22 gun possession sentence run concurrently, arguing in effect
23 that Malachowski’s possession of firearms was relevant
24 conduct to the continuing criminal enterprise at issue in
25 this case. A. 218-19.
26
27 Malachowski’s claim that counsel was ineffective for
28 failing to withdraw his guilty plea once it became clear
29 that Herrmann’s statement was false is not cognizable on
30 direct appeal. See Massaro v. United States, 538 U.S. 500,
31 504 (2003) (“[I]n most cases a motion brought under § 2255
32 is preferable to direct appeal for deciding claims of
33 ineffective assistance.”); United States v. Morris, 350 F.3d
34 32, 39 (2d Cir. 2003) (highlighting this Circuit’s “baseline
35 aversion to resolving ineffectiveness claims on direct
36 review”) (internal quotation marks omitted).
37
38 Finally, Malachowski argues that the Fifth Amendment
39 prohibition on Double Jeopardy was violated because counts
40 five through 13 charged him with nine different importation
41 charges, at different times, and counts 16 through 24
42 charged him with nine different distribution charges, again
43 during separate time periods. A. 36-46. We review double
44 jeopardy claims de novo. United States v. McCourty, 562
45 F.3d 458, 469 (2d Cir. 2009). Malachowski’s claim is
46 foreclosed by Blockburger v. United States, 284 U.S. 299,
47 301 (1932), which held that “distinct and separate sales
4
1 made at different times” constituted distinct offenses. See
2 also United States v. Estrada, 320 F.3d 173, 180 (2d Cir.
3 2003) (“A double jeopardy claim cannot succeed unless the
4 charged offenses are the same in fact and in law.”)
5 (emphasis added). And this result is dispositive of
6 Malachowski’s multiplicity claim, which also requires that
7 the charged offenses be the same in law and fact. United
8 States v. Jones, 482 F.3d 60, 72 (2d Cir. 2006).
9
10 For the foregoing reasons, and finding no merit in
11 Malachowski’s other arguments, we hereby AFFIRM the judgment
12 of the district court.
13
14 FOR THE COURT:
15 CATHERINE O’HAGAN WOLFE, CLERK
16
5