United States v. Baston , 355 F. App'x 530 ( 2009 )

08-4246-cr
United States v. Baston
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of December, two thousand nine.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PETER W. HALL,
9 Circuit Judge,
10 J. GARVAN MURTHA,
11 District Judge. *
12
13 - - - - - - - - - - - - - - - - - - - -X
14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 -v.- 08-4246-cr
18 WILSON JAMES BASTON, JR., also known
19 as Will James, also known as Wil
20 James,
*
J. Garvan Murtha, Senior District Judge of the United
States District Court for the District of Vermont, sitting
by designation.
1
1 Defendant-Appellant.
2 - - - - - - - - - - - - - - - - - - - -X
3
4 APPEARING FOR APPELLANT: J. SCOTT PORTER, Seneca Falls,
5 New York.
6
7 APPEARING FOR APPELLEE: GLEN G. McGORTY (Preet Bharara
8 and Daniel A. Braun, on the
9 brief), United States Attorney’s
10 Office for the Southern District
11 of New York, New York, New York.
12
13 Appeal from a judgment of the United States District
14 Court for the Southern District of New York (Baer, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the district court be
18 AFFIRMED.
19
20 Wilson Baston appeals a judgment sentencing him to
21 seventeen concurrent terms of 135 months imprisonment after
22 he pled guilty to multiple counts of mail and wire fraud.
23 Baston argues on appeal that his sentence should be vacated
24 both because the government breached the plea agreement and
25 because his own trial counsel provided constitutionally
26 ineffective assistance. He also contends that the
27 restitution order is improper.
28
29 We assume the parties’ familiarity with the underlying
30 facts, the procedural history, and the issues presented for
31 review.
32
33 [1] Baston argues that the government breached the terms of
34 the Plea Agreement in its sentencing memorandum and at the
35 sentencing hearing. We “review interpretations of plea
36 agreements de novo and in accordance with principles of
37 contract law.” United States v. Griffin, 510 F.3d 354, 360
38 (2d Cir. 2007) (quoting United States v. Riera, 298 F.3d
39 128, 133 (2d Cir. 2002)). But where--as here--a defendant
40 fails to preserve an objection to the government’s purported
41 breach of a plea agreement, plain error review applies.
42 Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).
43 Plain error review allows (but does not require) vacatur or
44 reversal if the defendant proves: (1) error; (2) that is
45 “clear or obvious, rather than subject to reasonable
46 dispute”; (3) that affected substantial rights, “which in
2
1 the ordinary case means . . . that it affected the outcome
2 of the district court proceedings”; and (4) that “seriously
3 affect[s] the fairness, integrity or public reputation of
4 judicial proceedings.” Id. at 1429 (internal quotation
5 marks omitted). Thus, our ability to remedy the error is
6 “strictly circumscribed.” Id. at 1428. “Meeting all four
7 prongs is difficult, ‘as it should be.’” Id. at 1429
8 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83
9 n.9 (2004)).
10
11 Baston asserts that the government breached when it
12 adopted a higher loss figure in the Revised Pre-Sentence
13 Report (“PSR”) and, separately, when it responded to an
14 inquiry of the court at sentencing by disclaiming any reason
15 to question the accuracy of the revised loss figures.
16 Regarding the sentencing memorandum, it is doubtful that the
17 government’s memorandum constitutes a breach of any term of
18 the Plea Agreement. By the time of the government’s
19 memorandum, Baston’s own lawyer had conceded the accuracy of
20 the Revised PSR. It is certainly possible (and Baston has
21 not convincingly argued otherwise) that the district court
22 would have imposed the sentence called for in the Revised
23 PSR on the basis of Baston’s concession alone, regardless of
24 the government’s statement in its memorandum.
25
26 Regarding the sentencing hearing, the government’s
27 conduct in this case closely parallels the conduct at issue
28 in Riera. And for the same reasons that the court found no
29 error there, see 298 F.3d at 134, we find no error here.
30
31 [2] Baston also contends that his trial counsel provided
32 constitutionally ineffective assistance by conceding the
33 accuracy of the Revised PSR and by failing to scrutinize and
34 challenge the loss calculations in the Revised PSR.
35 Ineffective assistance claims are governed by the familiar
36 standard enunciated in Strickland v. Washington, 466 U.S.
37 668 (1984). “When faced with a claim for ineffective
38 assistance of counsel on direct appeal,” this Court may:
39 “(1) decline to hear the claim, permitting the appellant to
40 raise the issue . . . [in] . . . [a] habeas corpus
41 [petition] . . . ; (2) remand the claim to the district
42 court for necessary factfinding; or (3) decide the claim on
43 the record before [the Court].” United States v. Morris,
44 350 F.3d 32, 39 (2d Cir. 2003). Though these three options
45 remain available to us, there is a “baseline aversion to
46 resolving ineffectiveness claims on direct review,” id.3
1 (quoting United States v. Salameh, 152 F.3d 88, 161 (2d Cir.
2 1998)), and the Supreme Court has stated a preference that
3 ineffective assistance claims be resolved in a habeas
4 petition rather than on direct appeal. Massaro v. United
5 States, 538 U.S. 500, 504 (2003). Adhering to this
6 guidance, we dismiss Baston’s ineffective assistance claims
7 without prejudice to their being re-filed as part of any
8 future habeas proceeding.
9
10 [3] Baston also argues that the amount of restitution
11 ordered by the district court is improper and should be
12 vacated. We review an order of restitution for abuse of
13 discretion, and we will find error under this standard only
14 if the restitution order “rests on an error of law, a
15 clearly erroneous finding of fact, or otherwise cannot be
16 located within the range of permissible decisions.” United
17 States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009)
18 (internal quotation marks omitted). Because Baston did not
19 object at sentencing to the restitution amount, we review
20 his claim for plain error. See United States v. Nucci, 364
21 F.3d 419, 421 (2d Cir. 2004). Baston fails to articulate a
22 theory of error that is sufficiently “plain” to withstand
23 plain error review.
24
25 Finding no merit in Baston’s remaining arguments, we
26 hereby AFFIRM the judgment of the district court.
27
28
29 FOR THE COURT:
30 CATHERINE O’HAGAN WOLFE, CLERK
31 By:
32
33
34 ___________________________
4