United States v. Frederick ( 2010 )

09-0934-cr
United States v. Frederick
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 25th day of June, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
AMALYA L. KEARSE,
PIERRE N. LEVAL,
Circuit Judges.
________________________________________
United States of America,
Appellee,
v. 09-0934-cr
Herman Ezekiel Frederick,
Defendant-Appellant.
________________________________________
FOR APPELLANT: Herman Ezekiel Frederick, pro se,
Minersville, PA.
FOR APPELLEE: Sarah Y. Lai, Andrew L. Fish, Assistant
United States Attorneys, Of Counsel, on
behalf of Preet Bharara, United States
Attorney for the Southern District of New
York, New York, NY.
Appeal from a judgment and post-judgment order of
the United States District Court for the Southern
District of New York (Scheindlin, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district
court be AFFIRMED and the appeal from the post-judgment
order be DISMISSED as untimely. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.
Defendant-Appellant Herman Ezekiel Frederick
appeals pro se from a judgment of conviction entered in
April 2008 and from a post-judgment order entered in
September 2008.
Frederick pled guilty to a one-count indictment
charging him with wire fraud, in violation of 18 U.S.C.
§ 1343. In April 2008, the district court sentenced
Frederick principally to a 27-month term of imprisonment
and three years of supervised release. In September
2008, the district court denied a post-judgment motion
by Frederick seeking to “vacate” or withdraw his plea.
Frederick’s appeal from the district court’s
September 2008 denial of his post-judgment motion is
untimely. His notice of appeal was filed in February
2009 (more than ten days after the entry of that order).
See Fed. R. App. P. 4(b) (2009). Because the Government
has objected to its untimeliness, the filing period is
“mandatory and inflexible.” United States v. Frias, 521
F.3d 229, 234 (2d Cir. 2008).
Frederick’s notice of appeal was also filed more
than ten days after the April 2008 judgment of
conviction. We assume without deciding that this appeal
was timely, in view of the district court’s deferral of
the determination of a restitution amount and the
explicit statement made on the judgment form indicating
that an amended judgment would be entered following the
final determination of restitution. See Fed. R. App. P.
4(b)(2); Frias, 521 F.3d at 234 (noting that Rule 4(b)
is not jurisdictional); but see Dolan v. United States,
No. 09-367, 2010 U.S. LEXIS 4762, 560 U.S. ____ (June
14, 2010) (indicating in dicta that judgments containing
restitution components that lack specific dollar figures
are final judgments that may be appealed from).
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As they were not preserved, we review Frederick’s
challenges to his guilty plea for plain error, see
United States v. Dominguez Benitez, 542 U.S. 74, 80
(2004), and find none. A review of the record indicates
that Frederick entered into his plea knowingly,
voluntarily, and intelligently, and that there was a
sufficient factual basis for the plea.
Frederick’s remaining challenges to his conviction
are waived. A defendant who knowingly and voluntarily
enters a guilty plea waives all non-jurisdictional
defects in the prior proceedings. See United States v.
Lasaga, 328 F.3d 61, 63 (2d Cir. 2003); United States v.
Calderon, 243 F.3d 587, 590 (2d Cir. 2001).
Frederick’s challenges to his sentence are also
unpreserved and reviewed for plain error. See United
States v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009).
We find none.
To the extent that Frederick raises a claim of
ineffective assistance of counsel, we decline to address
this claim on direct appeal. Frederick may elect to
raise this before the district court in a motion under
28 U.S.C. § 2255. See Massaro v. United States, 538
U.S. 500, 504-05 (2003); United States v. Morris, 350
F.3d 32, 39 (2d Cir. 2003).
We have reviewed Frederick’s remaining arguments on
appeal and conclude that they are without merit.
For the foregoing reasons, the appeal from the
district court’s September 2008 order is hereby
DISMISSED and the April 2008 judgment of the district
court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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