United States v. Desrosier , 431 F. App'x 36 ( 2011 )

10-0743-cr
United States v. Desrosier
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 23rd day of June, two thousand eleven.
PRESENT: BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges,
EDWARD R. KORMAN,
District Judge*
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UNITED STATES OF AMERICA,
Appellee,
-v.- 10-0743-cr
PATRICK DESROSIER,
Defendant-Appellant.
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*
The Honorable Edward R. Korman, United States District
Judge for the Eastern District of New York, sitting by
designation.
FOR DEFENDANT-APPELLANT: KELLEY J. SHARKEY, Law Office of
Kelley J. Sharkey, Esq., Brooklyn,
New York.
FOR APPELLEE: JULIAN J. MOORE, Assistant United
States Attorney (Justin Anderson,
Assistant United States Attorney,
on the brief), for Preet Bharara,
United States Attorney for the
Southern District of New York, New
York, New York.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Marrero, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment is AFFIRMED.
Defendant-appellant Patrick Desrosier appeals from a
judgment of conviction, entered February 22, 2010, convicting him
of conspiracy to distribute cocaine base and cocaine in violation
of 21 U.S.C. § 846 and sentencing him principally to a term of
imprisonment of 120 months. Following entry of his plea of
guilty on April 6, 2009, Desrosier sent a letter pro se to Judge
Marrero requesting to withdraw his plea. Several days later his
lawyer submitted a letter advising that Desrosier wished to move
to withdraw his plea. The district court denied the request on
April 24, 2009. We assume the parties' familiarity with the
facts and procedural history, which we reference only as
necessary to explain our decision to affirm.
On appeal, Desrosier challenges the district court's
denial of his motion to withdraw his guilty plea. We review the
district court’s ruling for abuse of discretion. United States
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v. Doe, 537 F.3d 204, 211 (2d Cir. 2008). We conclude that the
district court applied the correct legal standards in denying
Desrosier's motion to withdraw and that it did not abuse its
discretion.
Rule 11(d)(2)(B) provides that "a defendant may
withdraw a plea of guilty . . . after the court accepts the plea,
but before it imposes sentence if . . . the defendant can show a
fair and just reason for requesting the withdrawal." Fed. R.
Crim. P. 11(d)(2)(B). To assess whether a defendant has
demonstrated a "fair and just" reason for withdrawing a plea, "a
district court should consider inter alia: (1) the amount of time
that has elapsed between the plea and motion; (2) whether the
defendant has asserted a claim of legal innocence; and (3)
whether the government would be prejudiced by a withdrawal of the
plea." Doe, 537 F.3d at 210. This third factor is not
dispositive, however, as "[t]he Government 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." United States v. Gonzalez, 970 F.2d
1095, 1100 (2d Cir. 1992). Furthermore, where a motion to
withdraw a plea is premised on involuntariness, 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).
Desrosier argues that the district court applied the
wrong legal standard, relying on a passing comment made by Judge
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Marrero, that he found no "compelling grounds for a withdrawal."
It is clear from the record as a whole, however, that the
district court applied the appropriate "fair and just" standard
in denying Desrosier's motion to withdraw his plea. At the
proceeding on April 24, 2009, for example, the government cited
Rule 11(d)(2)(B) to the district court and quoted the "fair and
just reason" test. Moreover, the district court weighed the
relevant factors outlined in Doe and considered the voluntariness
of Desrosier's motion.
First, the district court addressed the timeliness of
the request to withdraw, noting that the request was made
"shortly after or on the same day" as Desrosier's guilty plea.
See Doe, 537 F.3d at 210. As to Doe's second factor, Desrosier
did not assert a claim of legal innocence, as he relied primarily
on his desire to file suppression motions, which the district
court found meritless. Balancing these factors, the district
court found Desrosier's grounds for withdrawal "without any
basis" and "insufficient." Given this finding, the government
was not required to show prejudice. See Gonzalez, 970 F.2d at
1100.
Furthermore, Desrosier presented no real question as to
the voluntariness of his plea. He did not express any anxiety or
panic at his plea allocution and answered the question "Do you
feel ok?" with "Yes. I'm fine." Nor did Desrosier's initial
letter asking to withdraw his guilty plea mention any sense or
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state of panic. Defense counsel's comments at the April 24,
2009, hearing are the only claim of any panic, as Desrosier never
submitted an affidavit. In light of the Doe factors and the
absence of any question, much less a "significant question," as
to involuntariness, it was well within the district court's
discretion to refuse to allow Desrosier to withdraw his plea of
guilty.
We have considered all of Desrosier's contentions on
appeal and have found them to be without merit. Accordingly, for
the reasons stated above, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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