12-1268-cr United States v. Nourse 1 **UNITED STATES COURT OF APPEALS** 2 3 **FOR THE SECOND CIRCUIT** 4 5 August Term, 2012 6 7 8 (Argued: April 19, 2013 Decided: July 16, 2013) 9 10 Docket No. 12-1268 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 UNITED STATES OF AMERICA, 15 16 Appellee , 17 18 - v.- 19 20 Michael Cook, Sean Herrmann, AKA Vinny, Scott Power, Marcel 21 Malachowski, AKA Sealed Defendant 4, AKA Memo, Selena 22 Hopper, AKA Sealed Defendant 2, AKA Sealed Defendant 5, Lee 23 Tarbell, AKA Sealed Defendant 6, AKA Sleeman, June Jacobs, 24 AKA Sealed Defendant 7, AKA Punk, John Jacobs, AKA Sealed 25 Defendant 8, AKA Wadd, Bryan Cole, AKA Sealed Defendant 9, 26 AKA Buckwheat, Jacquis Harris, AKA Sealed Defendant 7, AKA 27 Sealed Defendant 10, Owen Peters, AKA Sealed Defendant 11, 28 AKA Weezy, Brandon Benedict, AKA Sealed Defendant 12, David 29 Herrmann, AKA Sealed Defendant 13, Adam Fender, AKA Sealed 30 Defendant 14, AKA The Electrician, Jonas Cavallo, AKA Sealed 31 Defendant 15, AKA The Carpenter, Armande Millhouse, AKA 32 Sealed Defendant 16, AKA Beatlejuice, AKA Milly, Jeffrey 33 Baroni, AKA Sealed Defendant 18, Jason Tackus, AKA Sealed 34 Defendant 19, Joshua Brown, AKA Sealed Defendant 20, Sean 35 Canty, AKA Sealed Defendant 21, Aaron Freyder, AKA Sealed 36 Defendant 22, Dominick Stone, AKA Sealed Defendant 23, 37 38 Defendants , 39 40 ANDREW NOURSE, AKA Sealed Defendant 17, AKA The Jeweler, 41 42 Defendant-Appellant

. 43 44 - - - - - - - - - - - - - - - - - - - -x 45Before: JACOBS, Chief Judge , POOLER and WESLEY, 1 Circuit Judges

. 2 3 Andrew Nourse appeals from his sentence of 60 months’ 4 imprisonment for conspiracy to distribute and possess with 5 the intent to distribute more than a 100 kilograms of 6 marijuana,entered in the United States District Court for 7 the Northern District of New York (Kahn, J. ). He challenges 8 a ruling on criminal history; but to press that argument, 9 Nourse must overcome an appeal waiver. Although the 10 district court expressed the terms of the waiver 11 imperfectly, the objection was unpreserved. We hold that 12 plain error is the standard of review for an unpreserved 13 challenge to an appeal waiver, and that Nourse has not 14 sustained his burden. Affirmed. 15 BRENDA K. SANNES (Terrence M. 16 Kelly, on the brief ) forRichard 17 S. Hartunian, United States 18 Attorney for the Northern 19 District of New York, Syracuse, 20 NY, for Appellee

. 21 22 DEVIN MCLAUGHLIN, Langrock 23 Sperry & Wool, LLP, Middlebury, 24 VT, for Defendant-Appellant

. 25 26 DENNIS JACOBS, Chief Judge : 27 28 Andrew Nourse appeals from his 60-month sentence, 29 entered in the United States District Court for the Northern 30

2District of New York (Kahn, J. ), for conspiracy to 1 distribute and possess with the intent to distribute more 2 than a 100 kilograms of marijuana . He challenges a ruling 3 on criminal history; but to press that argument, Nourse must 4 overcome an appeal waiver. Although the district court 5 expressed the terms of the waiver imperfectly, the objection 6 was unpreserved. We hold that plain error is the standard 7 of review for an unpreserved challenge to an appeal waiver, 8 and that Nourse has not sustained his burden. Affirmed. 9
10

**I** 11 Andrew Nourse was a driver for an Albany drug 12 distribution ring that operated in 2008-09. After his 13 arrest in 2011, Nourse entered a plea agreement consenting 14 to the charge of conspiracy to distribute and possess with 15 the intent to distribute more than 100 kilograms of 16 marijuana. He stipulated that he was “accountable for at 17 least 100 kilograms but less than 400 kilograms” of 18 marijuana. Plea Agreement at 7, ECF No. 389. 19 Nourse’s plea agreement recites that he consulted with 20 counsel, “fully underst[ood] the extent of his rights to 21 appeal” and “waive[d] any and all rights, including those 22

3conferred by l8 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to 1 appeal or collaterally attack his conviction and any 2 sentence of imprisonment of 60 months or less

. . . . ”Plea 3 Agreement at 12 (emphasis added). 4 During the change of plea colloquy, the district court 5 reviewed Nourse’s plea agreement with him, touching as 6 follows on the appeal waiver: 7 THE COURT: Is there a waiver of any appeal 8 rights in the plea agreement? 9 MR. KELLY: Yes, your Honor. The defendant 10 waives his right to appeal and to collaterally attack 11 his conviction. He preserves the right to appeal the 12 reasonableness of the sentence in excess of 60 months. 13 THE COURT: Is that correct, Mr. Kindlon? 14 MR. KINDLON: Yes, your Honor, it is. 15 THE COURT: Do you understand that too, Mr. Nourse? 16 THE DEFENDANT: I do. 17 18 Change of Plea Hr’g Tr. at 14-15, ECF No. 550. 19 20 The presentence investigation report (“PSR”) assigned 21 Nourse three criminal history points based on three 22 proceedings in Massachusetts state court, each of which was 23 “continued without a finding.” Presentence Report 24 (“PSR”) ¶¶ 31-33, ECF No. 432. A continuance without a 25 finding is a mechanism in the Massachusetts courts that 26 permits charges to be dismissed on a date certain if the 27 defendant complies with negotiated terms or probation. See 28

4Mass. Gen. Laws ch. 278, § 18. 1 1 In the first proceeding, Nourse was charged with 2 operating a motor vehicle under the influence of liquor, 3 operating an unregistered motor vehicle, and marked lane 4 violations in the district court in Hingham. PSR ¶ 31. In 5 the second, he was charged with possession of marijuana in 6

Boston. Id.¶ 32 **.** In the third, he was charged with 7 operating a motor vehicle with a suspended license, 8 operating an unregistered vehicle, and possession of 9 marijuana, in Framingham. Id.¶ 33 **.** Each case was 10 “continued without a finding,” apparently in exchange for a 11 probationary agreement. 12

1“A defendant who is before the Boston municipal court or a district court or a district court sitting in a juvenile session or a juvenile court on a criminal offense within the court’s final jurisdiction shall plead not guilty or guilty, or with the consent of the court, nolo contendere. Such plea of guilty shall be submitted by the defendant and acted upon by the court; provided, however, that a defendant with whom the commonwealth cannot reach agreement for a recommended disposition shall be allowed to tender a plea of guilty together with a request for a specific disposition. Such request may include any disposition or dispositional terms within the court’s jurisdiction, including, unless otherwise prohibited by law, a dispositional request that a guilty finding not be entered, but rather the case be continued without a finding to a specific date thereupon to be dismissed, such continuance conditioned upon compliance with specific terms and conditions or that the defendant be placed on probation pursuant to the provisions of [chapter 276, § 87].” Mass. Gen. Laws ch. 278, § 18.
5Nourse argued at the February 2012 sentencing hearing 1 that these prior offenses should not affect his criminal 2 history. The district court rejected the argument, 3 referencing a First Circuit opinion holding that a 4 Massachusetts continuance without a finding could be 5 considered for the purpose of criminal history. Sentencing 6 Hr’g Tr. at 5-6, ECF No. 514. However, the district court 7 also suggested that it was “an interesting issue for appeal, 8 if [Nourse’s counsel] is so inclined; I don’t think our 9 Second Circuit has ruled on it at all.” Id.at 5. The 10 court proceeded to sentence Nourse to 60 months’ 11 imprisonment, the statutory mandatory minimum. Id.at 6. 12 13

**II** 14 Before accepting a guilty plea, Federal Rule of 15 Criminal Procedure 11(b)(1)(N) requires that the court 16 “inform the defendant of, and determine that the defendant 17 understands . . . the terms of any plea-agreement provision 18 waiving the right to appeal or to collaterally attack the 19 sentence.” Fed. R. Crim. P. 11(b)(1)(N). The parties 20 dispute the proper standard of review for Nourse’s claim 21 that the district court failed to comply with the Rule. 22

6A circuit split over how to evaluate Rule 11 errors was 1 resolved in United States v. Vonn , 535 U.S. 55, 58-59 2 (2002). A defendant who has not preserved a Rule 11 3 objection in district court and wishes to amend his guilty 4 plea on appeal must show plain error. Id.After Vonn, 5 other circuits have applied plain error to appeals arising 6 under Rule 11(b)(1)(N) specifically. SeeUnited States v. 7 Borrero-Acevedo , 533 F.3d 11, 13 (1st Cir. 2008) (joining 8 “the other circuits to have considered the question and 9 hold[ing] that the plain error standard applies to 10 unpreserved claims of violations of Fed. R. Crim. P. 11 11(b)(1)(N)”) (citing United States v. Murdock , 398 F.3d 12 491, 496 (6th Cir. 2005) and United States v. 13 Arellano-Gallegos , 387 F.3d 794, 797 (9th Cir. 2004)); see 14 alsoUnited States v. Sura , 511 F.3d 654, 662 (7th Cir. 15 2007); United States v. Edgar , 348 F.3d 867, 873 (10th Cir. 16 2003). Because we have not expressly stated the standard of 17 review for unpreserved challenges under subsection 18 (b)(1)(N), Nourse suggests that they should be considered 19 under some different standard. We disagree. 20 Nourse argues that this Court has “refrained” from 21 imposing a plain error standard in this context. Instead, 22

7he advocates for the test set out in United States v. Ready, 1 which asks whether “the record ‘clearly demonstrates’ that 2 the waiver was both knowing (in the sense that the defendant 3 fully understood the potential consequences of his waiver) 4 and voluntary.” 82 F.3d 551, 557 (2d Cir. 1996) (citation 5 omitted). 6 Readywas decided three years before the 1999 adoption 7 of Rule 11(b)(1)(N), and six years before Vonn . Nourse 8 cites other of our cases in which plain error was not 9 applied as the standard; but they also pre-date one or both 10 of Rule 11(b)(1)(N) and Vonn . SeeUnited States v. Tang , 11 214 F.3d 365, 368 (2d Cir. 2000); United States v. 12 Martinez-Rios , 143 F.3d 662, 668 (2d Cir. 1998); United. 13 States v. Chen, 127 F.3d 286, 289-90 (2d Cir. 1997). In any 14 event, Ready’s “knowing and voluntary” test is not at all 15 inconsistent with plain error review: “Rule 11 is designed 16 to assist district courts in ensuring that a defendant’s 17 guilty plea is knowing and voluntary

. ” United States v. 18 Mercado , 349 F.3d 708, 211 (2d Cir. 2003) (emphasis added). 19 We are bound by Vonn , which governs allRule 11 20 appeals, subsection (b)(1)(N) included. The general 21 principle is that “Rule 11 violations that are not objected 22

8to at the time of the plea are subject to plain error review 1 under Rule 52(b) of the Federal Rules of Criminal 2 Procedure.” United States v. Youngs , 687 F.3d 56, 59 (2d 3 Cir. 2012) (citing Vonn , 535 U.S. at 62-63). That rule has 4 been applied to subsections other than (b)(1)(N), see, e.g. , 5 United States v. Vaval , 404 F.3d 144, 151 (2d Cir. 2005) 6 (using plain error review in the context of a Rule 7 11(b)(1)(K) appeal), and it applies here as well. 8 Plain error review facilitates (and protects) judicial 9 efficiency. Without it, litigants would have little reason 10 to bring Rule 11 errors to a district court’s attention, a 11 consideration that is equally salient for subsection 12 (b)(1)(N). SeeBorrero-Acevedo , 533 F.3d at 15-16 (citing 13

Vonn, 535 U.S. at 73). Appellate waivers advance powerful 14 considerations of efficiency and finality; prosecutors make 15 various accommodations in plea deals in exchange for the 16 certainty that they will not have to spend resources 17 litigating appeals down the line. 18 Accordingly, we apply plain error review to Nourse’s 19 unpreserved Rule 11(b)(1)(N) challenge. “Plain error review 20 requires a defendant to demonstrate that (1) there was 21 error, (2) the error was plain, (3) the error prejudicially 22

9affected his substantial rights, and (4) the error seriously 1 affected the fairness, integrity or public reputation of 2 judicial proceedings. . . . Additionally, to show that a 3 Rule 11 violation was plain error, the defendant must 4 demonstrate that there is a reasonable probability that, but 5 for the error, he would not have entered the plea.” Youngs , 6 687 F.3d at 59 (internal quotations omitted). 7 8

**III** 9 Nourse challenges the appeal waiver on two grounds: 10 that the judge failed to advise him of the “heart” of the 11 appeal waiver; and that the advice given was undermined by 12 the judge’s observation that the issue of Massachusetts law 13 bearing on criminal history was ambiguous and ripe for an 14 appeal to the Second Circuit. Neither argument is 15 persuasive; Nourse fails to demonstrate that any error 16 existed, or that absent the error he would not have entered 17 the plea. 18 Nourse argues that the judge “never informed [him] that 19 he was waiving the right to appeal a sentence of 60 months 20 or less.” Nourse Br. at 10. Because Nourse did not raise 21 this error in the district court, where it could have been 22

10promptly sorted out, his argument is reviewed for plain 1
error. SeeVonn, 535 U.S. at 62-63. 2 The court explicitly asked Nourse about the appellate 3 waiver, and Nourse confirmed that he consented to it. The 4 exchange was perfectly lucid and understandable. 5 Nourse argues that the prosecutor’s expression of the 6 waiver did “notstate by necessary implication that [Nourse] 7 could not appeal a sentence of less than 60 months.” Nourse 8 Br. at 11. But no negative pregnant suggested that he 9 could. The prosecutor stated that Nourse waived his right 10 to appeal, but preserved his right to appeal a sentence in 11 excess of 60 months. The first point makes sense only if 12 the second is understood as a carve-out; i.e. , there is a 13 general waiver except for a sentence that exceeds 60 months. 14 Since, under the circumstances, there was “no realistic 15 possibility that [the defendant] might have misunderstood 16 the nature or source of the waiver,” the district court 17 “properly addressed the waiver provision during the plea 18 colloquy.” United States v. Morgan , 386 F.3d 376, 379 (2d 19 Cir. 2004). 20 Nourse cites as an analog, United States v. Smith, 618 21 F.3d 657, 664-65 (7th Cir. 2010), in which the district 22

11court asked the public defender whether there was a plea 1 waiver and elicited the response, “everything is waived with 2 the exception of the reasonableness of the 3 sentence . . . [a]nd he can’t withdraw his plea.” Id.at 4 565. The judge asked the defendant, “[y]ou understand 5 that?” and the defendant said he did. Id.The Seventh 6 Circuit held that this exchange “did not comport with the 7 requirements of Rule 11(b)(1)(N)” because the judge had not 8 adequately explained to the defendant the “substance of the 9 waiver.” Id.The judge’s inquiries focused on the finality 10 of the plea rather than the appeal waiver itself. Id. 11 There is no such ambiguity here. The relevant exchange 12 among the judge, the prosecutor, Nourse’s counsel, and 13 Nourse himself referenced only the appeal waiver. The most 14 logical understanding of Nourse’s response is that, except 15 for a retained “right to appeal the reasonableness of [a] 16 sentence in excess of 60 months,” he understood that he was 17 waiving altogether “his right to appeal and to collaterally 18 attack his conviction.” Change of Plea Hr’g Tr. at 14. 19 Nourse contends that the appeal waiver was at least 20 impaired when the district court suggested a Second Circuit 21 appeal on the issue of Massachusetts law. However, “an 22

12otherwise enforceable waiver of appellate rights is not 1 rendered ineffective by a district judge’s post-sentencing 2 advice suggesting, or even stating, that the defendant may 3 appeal.” United States v. Fisher , 232 F.3d 301, 304 (2d 4 Cir. 2000). The district court’s stray comment occurred at 5 sentencing, not at the plea colloquy, so it does not speak 6 to whether Nourse’s appellate waiver was knowing and 7 voluntary. Nourse relies on a proviso in Fisherthat “[a] 8 district judge’s advice concerning appellate rights might 9 weigh in favor of construing an ambiguous waiver not to be 10 enforceable.” Id.at 304 n.2. But for the reasons 11 explained supra , the waiver here was not at all ambiguous. 12 In sum, Nourse made a knowing and voluntary waiver. He 13 therefore has not established a Rule 11(b)(1)(N) error to 14 satisfy the first step of the plain error test. 15 Nourse also fails to establish plain error for a 16 second, alternative reason: he has not shown “a reasonable 17 probability that, but for the error, he would not have 18 entered the plea.” Youngs , 687 F.3d at 59. In fact, Nourse 19 admits that he doesnot want to withdraw his plea. Nourse 20 Br. at 14 (“Unlike most Rule 11 challenges, where the 21 defendant is seeking to withdraw his plea, Mr. Nourse is 22

13merely seeking the opportunity to be heard on appeal as to 1 the sentence he claims is illegal.”). 2 Because Nourse’s appeal waiver is binding, we need not 3 reach the merits of his argument under Massachusetts law. 4
5 For the foregoing reasons, we affirm. 6

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