United States v. Gunn

10-1170-cr
United States v. Gunn
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of April, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-1170-cr
17
18 RODERICK GUNN, also known as Tyrone
19 Coleman,
20 Defendant-Appellant.
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22
23 FOR APPELLANT: Richard Palma, Law Office of Richard
24 Palma, New York, New York.
25
26
27 FOR APPELLEE: John J. O’Donnell, Assistant United
28 States Attorney (Harry A. Chernoff,
29 Assistant United States Attorney, on the
1 brief), for Preet Bharara, United States
2 Attorney for the Southern District of New
3 York.
4
5 Appeal from a judgment of conviction in the United
6 States District Court for the Southern District of New York
7 (Pauley, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Defendant-Appellant Roderick Gunn (“Gunn”) appeals on
14 multiple grounds his conviction and sentence for (1)
15 conspiring to commit robberies of narcotics dealers, in
16 violation of 18 U.S.C. § 1951; (2) committing a robbery of a
17 narcotics dealer, in violation of 18 U.S.C. §§ 1951, 1952;
18 (3) carrying and brandishing of firearms during and in
19 relation to the crimes of violence, in violation of 18
20 U.S.C. §§ 924(c)(1)(A)(ii) and (c)(2); (4) conspiring to
21 distribute marijuana, in violation of 21 U.S.C. § 846; and
22 (5, 6) two counts of illegal firearms possession, each in
23 violation of 18 U.S.C. § 922(g)(5). On December 19, 2003,
24 Gunn pleaded guilty to the above-listed counts pursuant to a
25 cooperation agreement; however, after the Government
26 discovered that Gunn had lied during his proffer sessions,
27 Gunn moved (twice) to withdraw his guilty plea. The
28 district court denied both of Gunn’s motions, and on March
29 17, 2010, the district court sentenced Gunn to an aggregate
30 term of 141 months’ imprisonment, followed by a term of five
31 years’ supervised release, and imposed a $600 mandatory
32 special assessment.
33
34 We assume the parties’ familiarity with the underlying
35 facts, the procedural history, and the issues presented for
36 review.
37
38 [1] Because Gunn raises for the first time on appeal his
39 challenge that the Hobbs Act and narcotics conspiracy
40 convictions lack a sufficient factual basis, we review for
41 plain error. Under plain error review, “an appellate court
42 may, in its discretion, correct an error not raised at trial
43 only where the appellant demonstrates that (1) there is an
44 ‘error’; (2) the error is ‘clear or obvious, rather than
2
1 subject to reasonable dispute’; (3) the error ‘affected the
2 appellant’s substantial rights, which in the ordinary case
3 means’ it ‘affected the outcome of the district court
4 proceedings’; and (4) ‘the error seriously affect[s] the
5 fairness, integrity or public reputation of judicial
6 proceedings.’” United States v. Marcus, 130 S. Ct. 2159,
7 2164 (2010) (quoting Puckett v. United States, 129 S. Ct.
8 1423, 1429 (2009)). To “affect substantial rights,” an
9 error must have been prejudicial and affected the outcome of
10 the district court proceedings. United States v. Olano, 507
11 U.S. 725, 734 (1993).
12
13 In Hobbs Act robbery conspiracy cases, the Government
14 must establish that the defendant agreed with others to
15 “obstruct, delay, or affect interstate commerce, by
16 unlawfully taking property ‘by means of actual or threatened
17 force, or violence, or fear of injury.’” United States v.
18 Santos, 449 F.3d 93, 97 (2d Cir. 2006) (quoting statutory
19 language of 18 U.S.C. § 1951(a)-(b)). The elements that the
20 Government must establish are the existence of a conspiracy
21 to commit a robbery that would have affected, or did affect,
22 interstate commerce, and the defendant’s knowing
23 participation in that conspiracy. Id. Where the charged
24 offense is a substantive Hobbs Act robbery, the Government
25 must prove that the defendant committed or attempted to
26 commit a robbery as described above, or aided and abetted
27 others in doing so.
28
29 The burden on the Government to establish the nexus to
30 interstate commerce is minimal. See United States v. Elias,
31 285 F.3d 183, 188 (2d Cir. 2002). “[I]f the defendant[’s]
32 conduct produces any interference with or effect upon
33 interstate commerce, whether slight, subtle, or even
34 potential, it is sufficient to uphold a prosecution under
35 the Hobbs Act.” United States v. Perrotta, 313 F.3d 33, 36
36 (2d Cir. 2002) (internal quotation marks omitted). Gunn
37 argues that the only factual basis for the conviction is
38 that he participated in a robbery of a narcotics dealer in
39 the Bronx. However, at the plea hearing, Gunn admitted that
40 he conspired with others “to assist them in robbing other
41 individuals of money and property in a fashion or manner
42 which impacted upon interstate commerce as that term has
43 been constructed by the courts.” Gunn’s admission is
44 sufficient to establish the de minimis effect on interstate
3
1 commerce necessary for Hobbs Act jurisdiction. See, e.g.,
2 United States v. Needham, 604 F.3d 673, 680 (2d Cir. 2010)
3 (“[A]ll that need be shown is the possibility or potential
4 of an effect on interstate commerce, not an actual effect.”
5 (internal quotation marks omitted)).
6
7 The elements of a conspiracy to distribute or possess
8 with intent to distribute narcotics under 21 U.S.C. § 846
9 are “the existence of [such] a conspiracy and the
10 defendant’s willful joining it.” United States v. Story,
11 891 F.2d 988, 992 (2d Cir. 1989). In addition, where the
12 indictment charges an aggravated narcotics offense that
13 carries an enhanced penalty based on a particular drug type
14 and quantity pursuant to 21 U.S.C. § 841(b), “drug quantity
15 must be deemed an element.” United States v. Gonzalez, 420
16 F.3d 111, 129 (2d Cir. 2005). Gunn contends that the charge
17 did not satisfy an interstate commerce nexus; but there is
18 no requirement that the Government establish an interstate
19 commerce nexus in order to support a conviction for
20 narcotics conspiracy. In his plea allocution, Gunn admitted
21 that “during the time period of 2002, 2003, I conspired with
22 others to possess and distribute marijuana” and that “[o]n
23 two occasions during 2002 and 2003, I sold 16 pounds of
24 marijuana.” This was more than adequate to support his
25 conviction for conspiracy to distribute marijuana.
26
27 [2] We review the district court’s denial of a motion to
28 withdraw a guilty plea under an abuse of discretion
29 standard. United States v. Carreto, 583 F.3d 152, 157 (2d
30 Cir. 2009). A defendant must “show a fair and just reason
31 for requesting the withdrawal” of his guilty plea. Id. at
32 157 (internal quotation mark omitted).
33
34 Rule 11(d)(2)(B) provides that a “defendant may
35 withdraw a plea of guilty . . . after the court accepts the
36 plea, but before it imposes sentence if . . . the defendant
37 can show a fair and just reason for requesting the
38 withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “A defendant has
39 no absolute right to withdraw his plea of guilty.” United
40 States v. Williams, 23 F.3d 629, 634 (2d Cir. 1994). “In
41 general, to determine whether the defendant has shown a
42 ‘fair and just reason’ to justify withdrawal, a district
43 court considers, inter alia: (1) whether the defendant has
44 asserted his or her legal innocence in the motion to
4
1 withdraw the guilty plea; (2) the amount of time that has
2 elapsed between the plea and the motion (the longer the
3 elapsed time, the less likely withdrawal would be fair and
4 just); and (3) whether the government would be prejudiced by
5 a withdrawal of the plea.” United States v. Schmidt, 373
6 F.3d 100, 102-03 (2d Cir. 2004).
7
8 Gunn has failed to show that his counsel’s assistance
9 was ineffective. See Strickland v. Washington, 466 U.S.
10 668, 688, 692 (1984) (holding that to establish ineffective
11 assistance of counsel, a defendant must satisfy a two-part
12 test: (1) counsel’s representation must fall “below an
13 objective standard of reasonableness . . . under prevailing
14 professional norms,” and (2) this deficiency must have
15 prejudiced his defense). “A court considering a claim of
16 ineffective assistance must apply a ‘strong presumption’
17 that counsel’s representation was within the ‘wide range’ of
18 reasonable professional assistance” and “[t]he challenger’s
19 burden is to show ‘that counsel made errors so serious that
20 counsel was not functioning as the “counsel” guaranteed the
21 defendant by the Sixth Amendment.’” Harrington v. Richter,
22 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at
23 687-89). To establish prejudice, the defendant must prove
24 that “there is a reasonable probability that, but for
25 counsel’s errors, he would not have pleaded guilty and would
26 have insisted on going to trial.” Hill v. Lockhart, 474
27 U.S. 52, 59 (1985).
28
29 As the district court properly recognized, prior to his
30 guilty plea, Gunn met with the Government for five proffer
31 sessions, and Gunn’s attorney was present at each meeting.
32 Moreover, during the Rule 11 colloquy, the district court
33 established that Gunn had “a full opportunity to discuss
34 [his] case [with his counsel] and to discuss the
35 consequences of entering a plea of guilty,” and that Gunn
36 was satisfied with his counsel’s representation. With these
37 statements, Gunn cannot overcome the heavy burden that his
38 plea was involuntary, nor can he demonstrate to this Court
39 that the district court abused its discretion in denying
40 Gunn’s motion.
41
42 [3] We review a district court’s sentencing decision for
43 reasonableness. See United States v. Booker, 543 U.S. 220,
44 260-62 (2005). Reasonableness has both procedural and
5
1 substantive dimensions. See United States v.
2 Avello-Alvarez, 430 F.3d 543, 545 (2d Cir. 2005) (citing
3 United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir.
4 2005)). See generally United States v. Cavera, 550 F.3d
5 180, 189-90 (2d Cir. 2008) (en banc), cert. denied, 129 S.
6 Ct. 2735 (2009) (citations omitted).
7
8 Gunn argues that the sentence is procedurally and
9 substantively erroneous because the court refused to credit
10 Gunn for his cooperation with the Government. However, the
11 district court considered Gunn’s request for leniency; both
12 parties submitted written memoranda on this subject; and it
13 was discussed at oral argument on two separate days.
14 Although the district court recognized that Gunn had
15 provided useful information to the Government, it was
16 “deeply troubled” that Gunn had withheld his commission of
17 some of his most serious past crimes, especially Gunn’s
18 involvement in a felony murder, additional robberies, and
19 cocaine distribution. The district court correctly
20 considered the need for Gunn’s sentence to “afford adequate
21 deterrence” to criminal conduct. 18 U.S.C. § 3553(a)(2)(B).
22 Thus, the district court properly concluded that Gunn’s
23 untruthfulness outweighed his failed efforts at cooperation.
24 Accordingly, the sentence imposed (which was at the low end
25 of the Guideline range) was substantively reasonable under
26 this Court’s jurisprudence.
27
28 We have considered Gunn’s remaining arguments and find
29 them to be without merit. For the foregoing reasons, the
30 judgment of conviction is AFFIRMED.
31
32
33
34 FOR THE COURT:
35 CATHERINE O’HAGAN WOLFE, CLERK
36
37
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