United States v. Peralta ( 2019 )

18‐3290‐cr
United States v. Peralta
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 TO 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 25th day of November, two thousand nineteen.
PRESENT:
ROBERT D. SACK,
PETER W. HALL,
JOSEPH F. BIANCO,
Circuit Judges,
UNITED STATES OF AMERICA,
Appellee,
v. No. 18‐3290‐cr
MARCO ANTONIO LAM PERALTA, AKA MARCO ANTONIO LAM,
AKA TONY LAM, AKA ALEX LAM, AKA MARCO ANTONIO
LAMPERALTA, AKA ANTHONY LAM, AKA MARCO LAM
Defendant‐Appellant,
DIEGO WALTHER ANIBAL MEJIA PAREDES,
Defendant.
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Appearing for Appellee: MICHAEL P. DRESCHER (Gregory L. Waples, on
the brief) for Christina E. Nolan, United States
Attorney for the District of Vermont,
Burlington, VT.
Appearing for Defendant‐Appellant: DAVID J. WILLIAMS, Jarvis, McArthur &
Williams, Burlington, VT.
Appeal from a judgment of the United States District Court for the District
of Vermont (Sessions, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment is AFFIRMED.
Defendant‐Appellant Marco Antonio Lam Peralta (“Lam”) appeals from a
July 9, 2019, judgment, following a guilty plea, sentencing him to 120‐months
imprisonment. On appeal, Lam argues that the district court erred by denying
his motion to withdraw his guilty plea pursuant to Federal Rule of Criminal
Procedure 11(d)(2)(B). We assume the parties’ familiarity with the facts, record
of prior proceedings, and arguments on appeal, which we reference only as
necessary to explain our decision to affirm.
The Federal Rules of Criminal Procedure permit a defendant to withdraw
a guilty plea before sentencing when “the defendant can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In
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evaluating whether a defendant meets Rule 11(d)(2)(B)’s “fair and just” standard,
courts consider, inter alia: “(1) whether the defendant has asserted his or her legal
innocence in the motion to withdraw the guilty plea; (2) the amount of time that
has elapsed between the plea and the motion . . . ; and (3) whether the
government would be prejudiced by a withdrawal of the plea.” United States v.
Rivernider, 828 F.3d 91, 104 (2d Cir. 2016) (quoting United States v. Schmidt, 373
F.3d 101, 102–03 (2d Cir. 2004)). Further, when a defendant asserts that the
decision to plead guilty was involuntary, the “defendant must raise a significant
question about the voluntariness of the original plea,” United States v. Torres, 129
F.3d 710, 715 (2d Cir. 1997), and “a fortiori the court must focus on voluntariness.”
United States v. Rosen, 409 F.3d 535, 548 (2d Cir. 2005).
“We review a district court’s denial of a motion to withdraw a guilty plea
for abuse of discretion and any findings of fact in connection with that decision
for clear error.” United States v. Juncal, 245 F.3d 166, 170–71 (2d Cir. 2001)
(citation omitted). Applying these standards, we conclude that the district court
did not exceed the bounds of its discretion in denying Lam’s motion.
Lam contends, inter alia, that the district court improperly weighed against
him the timeliness of his motion to withdraw his plea and that the court applied
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the wrong legal standard in evaluating both Lam’s claims of legal innocence and
prejudice to the government. Ultimately, Lam asserts that the totality of the
circumstances demonstrates that his guilty plea was not knowing and voluntary.
We are not persuaded.
Although Lam argues there is a serious question as to the voluntariness of
his plea, the record in this case belies his contention. While he may have felt
significant pressure to choose between two unfavorable options, such pressure
does not rise to the level of coercion sufficient to render his guilty plea
involuntary. Moreover, Lam points to no other evidence suggesting that his
guilty plea was not voluntary.
At Lam’s change of plea hearing, the court thoroughly reviewed the nature
of the charge, the potential penalties, and the rights that Lam was forfeiting by
pleading guilty. It also provided Lam with many opportunities to confer
privately with his attorney, and it made sure that Lam agreed with the
government’s factual proffer. Further, when Lam later sought to withdraw his
plea, the court held an evidentiary hearing and explored Lam’s claim that his
attorney coerced his guilty plea. After considering testimony from both Lam’s
former attorney and Lam, the court found the attorney’s testimony credible and
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determined that the attorney did not “coerce or force [Lam] into pleading
guilty.” JA–461, 464.
In reaching its decision, the district court noted explicitly that it “does not
doubt that [the] Attorney . . . strongly expressed his view to Defendant that
pleading guilty was his best option. However, this sort of counseling is not
coercion[.]” Id. at 465. The district court’s analysis comports with our precedent
that “defense counsel’s blunt rendering of an honest but negative assessment of
appellant’s chances at trial, combined with advice to enter the plea, [does not]
constitute improper behavior or coercion that would suffice to invalidate a plea.”
Juncal, 245 F.3d at 172.
In addition, Lam did not sufficiently assert his innocence in his motion to
withdraw his plea. We have held that “self‐inculpatory statements made under
oath ‘carry a strong presumption of verity.’” United States v. Maher, 108 F.3d
1513, 1530 (2d Cir. 1997) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
Further, we require defendants to provide evidence supporting a claim of
innocence. United States v. Hirsch, 239 F.3d 221, 225 (2d Cir. 2001). “A
defendant’s bald statements that simply contradict what he said at his plea
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allocution are not sufficient grounds to withdraw the guilty plea.” Torres, 129
F.3d at 715 (citation omitted).
Here, Lam presented no evidence supporting his claim of legal innocence.
Instead, Lam merely recounts that he expressed his innocence throughout his
arrest and court proceedings, except when he signed the plea agreement on
August 4, 2017, and when he changed his plea to guilty on August 14, 2017.
Without evidence supporting Lam’s assertion of innocence, therefore, the district
court properly gave Lam’s “bald” assertion little credit. Torres, 129 F.3d at 715;
see United States v. Gonzalez, 647 F.3d 41, 60 (2d. Cir. 2011) (finding no justification
for withdrawal when defendant “asserted in his affidavit that he wished to prove
his ‘legal innocence’ . . . and that he had ‘never wavered in his desire to prove
his legal innocence’ . . . [but] did not refer to anything that would corroborate a
claim of innocence”).
Contrary to Lam’s argument, the district court did not hold Lam to an
incorrect “consistency” standard. Rather, the court found that Lam admitted
guilt under oath at his plea allocution and did not provide sufficient evidence to
overcome that earlier admission.
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The district court, moreover, properly considered the timeliness of Lam’s
motion as a factor weighing “slightly” against the withdrawal of his guilty plea.
JA–463. The court acknowledged that “[c]ompared to other cases, [one month] is
not that long a period of time.” JA–462. Still, timeliness is only one of several
factors that a district court should consider in evaluating a motion to withdraw a
guilty plea. See Rivernider, 828 F.3d at 104. Even when defendants quickly
request to withdraw their guilty pleas, we have found such requests insufficient
when the defendant has not otherwise demonstrated grounds to justify
withdrawal.1 As Lam neither raises a significant question regarding
voluntariness nor supports his claim of legal innocence, the district court did not
abuse its discretion by weighing this factor again him.
Finally, contrary to Lam’s argument, the district court applied the correct
legal standard in considering prejudice to the government. Lam points out that
the government has not pointed to any case‐specific prejudice. He argues that if
expending resources were sufficiently prejudicial, then Rule 11(d)(2)(B) would be
rendered superfluous, as every plea withdrawal necessarily requires the
government to expend resources for trial.
1This court has ruled similarly in other instances. See United States v. Scott, 569 F.
App’x. 55, 57 (2d Cir. 2014) (summary order); United States v. Desrosier, 431 F. App’x. 36,
37 (2d Cir. 2011) (summary order).
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While we have found there to be case‐specific prejudice in some instances,
see, e.g., United States v. Carreto, 583 F.3d 152, 157 (2d Cir. 2009), this court only
requires the government to show prejudice once the defendant demonstrates a
“fair and just” reason for withdrawal. Maher, 108 F.3d at 1529. Because Lam did
not meet his burden to demonstrate that his plea was involuntary, the
government was not required to show prejudice. Nonetheless, it was not an
abuse of discretion for the district court to consider that factor. See United States
v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (“The [g]overnment is not required
to show prejudice when opposing a defendant’s motion to withdraw a guilty
plea where the defendant has shown no sufficient grounds for permitting
withdrawal; however, the presence or absence of such prejudice may be
considered by the district court in exercising its discretion.”) (citation omitted).
Lam’s argument also treats prejudice to the government as a dispositive
factor. But general prejudice would only render Rule 11(d)(2)(B) superfluous if
any showing of prejudice defeated a motion for withdrawal. Instead, courts
“exercise . . . discretion in balancing these competing concerns.” Maher, 108 F.3d
at 1529 (citation omitted).
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Considering these factors, the district court did not abuse its discretion
when it denied Lam’s motion to withdraw his guilty plea. We have considered
Lam’s remaining arguments and find them to be without merit. The judgment of
the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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