17-1693 (Con) United States v. Dasilva UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED 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 PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (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 Co urt of Appeals for the Second Circuit, held at the Thurgood Marshall United States Cour thouse, 40 Foley Square, in the City of New York, on the 23 rd day of April, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge , JOHN M. WALKER, JOSÉ A. CABRANES, Circuit Judges

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UNITED STATES OF AMERICA, Appellee , v. No. 17-1140 (L) 17-1693 (Con) ROBERT HAUGHTON, AKA Duke, ONEIL DASILVA, AKA Soxx, AKA Bobby Soxx, Defendant-Appellant , NICO BURRELL, AKA ZICO NICO, DOUGLAS MCLARTY, AKA Q-DON, AKA Q-DIZZY, MARTIN MITCHELL, AKA TYLIEK, DONQUE TYRELL, AKA POLO RELL, GERARD BASS, AKA RODDO, DOMNICK SHERLAND, AKA D-NICK, BARFFOUR ABEBERSE, AKA DUCE BIGGA, MASHUD YODA, AKA PAPA OLA, ANDERSON ROSS, AKA BOOGY, AKA BOOGY BOO, AKA RAY ALLEN , JR., ANTHONY KING, AKA ANT-DOG, MARK WILLIAMS, AKA SPANGLER, AKA MA RKIE BOSSIN, QUAYSEAN CANNONIER, AKA TIC-TIC, TAYQUAN TU CKER, AKA CHICKEN, AKA CHICKENITA, WILLIAM REID, AKA UPTOWN WILL, MARLON ROBE RTS, AKA FETTI, AB DULLAH YODA, DBA DELLAH, KENNETH RUGGS, AKA MONEY MAKING KENNY, CALVIN RUGGS, FABIAN MORRISON, AKA FABO, SHAQUILLE DEWAR, AKA SHAQ DOE, DESEAN BENNETT, AKA DOOLA, JAFAR BORDEN, AKA JA FFY, JOSE RODRIGUEZ, AKA HOV,2 SHAVON WRIGHT, AKA BHIPPY , AKA YUNG BHIPPY, RASHEID BUTLER, AKA RAH, BRIAN RICHARDS, AKA B-RICH, DEVANTE JOSEPH, AKA WIZ, STEPHAN CLARKE, JAMES PILGRIM, AKA JIZZLE, MICH ELLE JEMISON, AKA PEBBLES, IVANJOEL ARYEETEY, AKA IJOE, AKA IVAN, JAMAL BL AIR, AKA FISH, DURELL GUY, HAKEEM CAMPBELL, AKA OCKY, AKA ACKEE, RIC HARD PHILLIPS, AKA G-MACK, RUSHAUN BROWN, AKA BOOBIE, MICHAEL FRANCIS, AKA MIKEY BANDZ, TYRONE GRAY, LAMAR FRANCIS, AKA LAMMY, AKA A NDREW BLACKS, SHANE BENNETT, AKA FATTAH, DAVID JONES, RICA RDO STEWART, AKA CARDO, DANTE PLUMMER, AKA TAE, JOEL HARGROVE, AKA FLOW, SH AWN REID, AKA SAMA, AKA SAMA LAMA, BRADLEY WILSON, AKA BROADWAY, ROBERT FELICIANO, DAN TE STEPHENS, AKA JIBBA, CARLETTO ALLEN, AKA JOKER, SH AQUILLE JOHN, AKA POPPY, OKEIFA JOHN, AKA RATTY, MICHAEL REDLEY, AKA MIKEY, AKA JONES, ALBERT AMPONSAH, AKA JUNGLE, RICHARD MONTAGUE, AKA SPANKS, ANTHONY LETTERIO, AKA YAY, RAI THOMAS, AKA RI TCH, JAVONE PEARCE, AKA JEVY, SHANICE JOHN, DOMINIQUE BASS, AKA DOM O, RICARDO BURGESS, AKA ZILLA, DAQUAN REID, Defendants.

For Defendant-Appellant: A LAN M. N ELSON , 3000 Marcus Ave., Lake Success, NY. For Appellee: K ARL M ETZNER and Rachel Maimin, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY. Appeal from a judgment of the United States Di strict Court for the Southern District of New York (Nathan, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. 1 Oneil Dasilva appeals from a judgment of conviction entered on May 17, 2017, by the

United States District Court for the S outhern District of New York (Nathan, J. ) sentencing him principally to a term of 180 months’ impris onment following a guilty plea. We assume the

1 Two motions in a related case, United States v. Haughton , No. 17-1140, are both granted: (1) Haughton’s attorney’s motion to be relieved as counsel to Haughton, pursuant to Anders v. California , 386 U.S. 738 (1967), ECF No. 35, and (2) the Government’s motion for summary affirmance of Haughton’s convi ction and sentence, ECF No. 98.3 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Dasilva argues that his guilty plea (as well as his sentence) should be vacated because the

district court violated Federal Ru le of Criminal Procedure 11, wh ich is “designed to assist the district judge in making the constitutionally requir ed determination that a defendant’s guilty plea is truly voluntary.” United States v. Maher , 108 F.3d 1513, 1520 (2d Cir. 1997). He primarily argues that the district court fail ed to advise him (i) that the Un ited States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) are advisory, (ii) that it could impose a sentence other than the sentence that Dasilva and the government stipulat ed to in his plea agreement, and (iii) that consideration of the 18 U.S.C. § 3553(a) factor s could lead to a sentence greater than the stipulated sentence, even if th at stipulated sentence reflecte d a proper U.S.S.G. calculation. “A guilty plea operates as a waiver of constitu tional rights, including the rights to a jury trial and against self-incriminati on, and it is therefore valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.” United States v. Johnson , 850 F.3d 515, 521 (2d Cir. 2017). 2 “Entry of a guilty plea must be a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” United States v. Gonzales , 884 F.3d 457, 460 (2d Cir. 2018) (per curiam). “[T]his Circu it has adopted a standard of stri ct adherence to Rule 11,” so “we examine critically even slight procedural de ficiencies to ensure that the defendant’s guilty plea was a voluntary and intelligent choice, and th at none of the defendant’s substantial rights has been compromised.” United States v. Livorsi , 180 F.3d 76, 78 (2d Cir. 1999). Unless there is an objection to a flaw in the plea colloquy, “strict adherence” to Rule 11 is subject to plain error

2 Unless otherwise indicate d, case quotations omit all internal quotation marks, alterations, footnotes, and citations.4 review, which “does not frequently require vacatur of a plea.” United States v. Pattee , 820 F.3d 496, 503 (2d Cir. 2016), cert. denied , 137 S. Ct. 222 (2016). Plain error review requires a defendant to demonstrate (1) e rror, (2) that was plain, (3) that “prejudicially affected hi s substantial rights,” and (4) “seriously affected the fairness, integrity or public reputation of judicial proceedings.” Id. at 505. “In order to establish that a

Rule 11 violation affected ‘substantial rights,’ the defendant must s how that there is a reasonable probability that, but for the error, he would not have entered the plea.” Id. We consider plain error “[i]n the context of the entire record.” Id. at 506. Dasilva did not object to the district court’s alleged failure to comply with Rule 11 during the plea hearing a nd we therefore review for plain error. Dasilva entered his plea voluntarily and willin gly. Despite Dasilva’s arguments to the contrary, the record below indicates that the distri ct court carefully apprised Dasilva of the rights he was waiving by pleading guilty, explicitly cl arified that it was not bound by the stipulated guidelines range of 120 months’ imprisonment that he and the government had outlined in his plea agreement, that the Guidelines are advisory, and that the district c ourt would evaluate the § 3553(a) sentencing factors wh en imposing his sentence. Dasilva argues that the dist rict court’s mention of the § 3553(a) factors was insufficient:

the district court should have e xplained that, “even if the stipul ated guideline range was found to be correct,” the § 3553(a) factors allowed the court to “vary above the stipulated guideline range and impose a sentence in excess of 120 months[’] imprisonment.” Appellant Br. 39. This belies the record below. The district court did just that. The district court plainly referred to the sentencing factors during Dasilva’s plea allocution and mentioned multiple times that the district court was not bound by any agreement with respect to a sentence that Dasilva had reached with the government. Moreover, Dasilva’s own sentencing submissions evince that he was aware that “the Court is required to consider the Guidelines together with all of the factors set forth in 185 U.S.C. § 3553(a) in determining a reasonabl e sentence in each indi vidual case.” App’x. 90 (emphasis added). Dasilva knew that an applicati on of the § 3553(a) factors could lead a court to vary from a Guidelines-range sentence. That is pr ecisely what the district court did, and what the

district court informed Dasilva it would do. Dasvila also argues that, by as king the government to comment on the case at sentencing,

the district court “all but invite d” the government to argue for a sentence above the stipulated sentence. Appellant Br. 18. As it ex plained at the senten cing, the district court “always” asks the prosecution to situate a defendant in the broa der context of an indictment. App. 167. Indeed, such information is necessary for the district c ourt to properly evaluate the § 3553(a) factors.

Dasilva contends that if he had “been advised that . . . the court had the powe r to vary above the guideline range and that in making such a dete rmination the court would make inquiry of the government concerning the relevant factors purs uant to 18 U.S.C. § 3553(a) the Court would consider, clearly he would have some pause in entering his guilty plea pursuant to the plea agreement.” Appellant Br. 37–38. Even assuming the district court did not advise him of this (which it did), “some pause” is not enough: Dasilva needs to show that, but for the district court’s error, he would not have en tered the plea. He has not done so. Finally, Dasilva argues that the district court did not properly inquire into his mental state at the time of his plea. The record demonstrates that the district court ensured that Dasilva understood the consequences of his guilty plea and that he was capable of entering an informed plea. See App. 65–67. His counsel indicated that he had no doubt as to Dasilva’s competence to plead. See App. 67. Now, on appeal, to demonstrate his di minished mental capacity at the time of his plea, Dasilva relies on comments by a psyc hologist that were submitted as part of his sentencing submissions, months afte r his guilty plea. At no time before the district court imposed his sentence did Dasilva attempt to withdraw his plea on the theory that it was not knowingly or voluntarily entered due to his mental state. Indeed, his sentencing submissions reiterated6 Dasilva’s remorse and relied on his plea as demonstration of this remorse and his heightened maturity since the time of his criminal behavi or. He cannot argue now that that plea was not made knowingly, voluntarily, or intelligently.

We have considered all of Dasilva’s remain ing arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk