19

- 2198

- cr United States v. Bailey UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTR ONIC 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 Thurgood Marsh all United States Courthouse, 40 Foley Square, in the City of New York, on the 21 st d ay of July , two thousand twenty

. PRESENT: GUIDO CALABRESI , DENNY CHIN , SUSAN L. CARNEY , Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x UNITED STATES OF AMERICA , Appellee ,

- v - 19

- 2198

- cr MILES BAILEY , Defendant

- Appellant

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x FOR APPELLEE : CARINA H. SCHOENBERGER , Assistant United States Attorney , for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse , New York.- 2

- FOR DEFENDANT

- APPELLANT : BRENDAN WHITE, White & White, New York, New York.
Appeal from the United States District Court for the Northern District of
New York ( Scullin , J. ). UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED

. Defendant

- appellant Miles Bailey appea ls from a final judgment entered July 22, 2019 , convicting him , following his guilty plea, of conspiracy to steal public money, theft of public money, and aggravated identity theft, in violation of 18 U.S.C. § § 371, 641, and 1028A(a)(1). He was sentenc ed principally to 75 months' imprisonment . On appeal , Bailey argu es that : (1) his plea was t aken in violation of Federal Rule of Criminal Procedure 11(b)(2); (2) the district court abused its discretion in denying his motion to withdraw his guilty plea ; and ( 3 ) his sentence was both procedurally and substantively unreasonable

. We assume the part ies' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Bailey was indicted on September 28, 2017 , and he entered into a written plea agreement with the g overnment on June 21 , 2018 . On the eve of Bailey's July 6, 2018 plea hearing , however, Bailey's attorney notif ied the district court that Bailey no longer planned to plead guilty

. On July 26, 2018, the g overnment filed a s uperseding- 3

- i ndictment against Bailey, removing one count of mail fraud and adding three counts of aggravated identity theft.
The superseding indictment alleged , among other things, that between March 2011 and July 2014, Bailey and his co

- conspirators used stolen identities to
fraudulent ly obtain tax refunds. Over the course of t he scheme, Bailey endorsed and deposited over 300 fraudulently obtained refund checks totaling more than $1.9 million into multiple bank accounts that he maintained

. Additionally, Bailey moved money
between these accounts and utilized front businesses to hide and launder the illicitly
obtained funds

. On November 28, 2018, the day trial was scheduled to begin , Bailey once again decided to plead guilty, this time without a plea agreement. At the start of the plea allocution, the district court told Bailey that it "must be satisfied that [he is] entering into [the] plea of [his] own free will

. " App'x at 40. The district court had Bailey's attorney "put on the record" his discussions with B ailey to help it determine
whether Bailey wa s pleading guilty " of his own free will

. " App'x at 4 2

. Bailey's attorney explaine d that Bailey believed pleading guilty would lead to "the best possible
outcome" and would serve his "best interest

. " App'x at 4 2. Finally, the district court asked Bailey if "anyone made any promises to [him] with respect to [his] sentencing , " and Bailey confirmed that no one had. App'x at 45

- 46. Based on its discussion with Bailey and defense counsel, the district court found that Bailey was "competent and . . .- 4

- capable of entering an informed plea" and that "his plea [was] a knowing and voluntary plea." App'x at 49. 1
Over seven months lat er -- and just two days before sentencing

-- Bailey's attorney filed a letter advising the court that Bailey wanted to withdraw his guilty ple a . At sentencing, t he district court denied Bailey ' s request , as well as his second request to adjourn sentencing . The court explained that Bailey waited many months to withdraw his plea, and it noted that he was "abusing the process

. " App'x at 69. Later in the sentencing , Bailey claimed that he plead ed guilty because a "cop" had pressured him by threatening to " charge " his father and daughter . A pp'x at 80. The g overnment denied
that this was true

. 2 The district court refused to entertain Bailey's allegation and proceeded with sentencing.
The P re s entenc e Investigation R eport re commended a term of imprisonment of 51

- 63 months on the charges related to theft of public money and a
consecutive two

- year term of imprisonment on the aggravated identity theft charges

-- a total range of 75

- 87 months . This calculation included, inter alia , the addition of two offense levels because the offense involved ten or more victims, and another two offense levels because the offense involved the use of sophisticated means. Although

1 On appeal, both the government and Bailey agree that the district court did not expressly ask Bailey whether anyone had threatened or pressured him to plead guilty

. 2 Bailey identified the individual as "Thomas Kubick ." App'x at 81. The Government sugge sts on appeal that this individual may be "Thomas Kubisch," who is an investigator for the Office of the Federal Public Defender.- 5

- Bailey's attorney objected t o these enhancements, t he district court applied the m and sentenced Bailey to 75 months ' imprisonment

. This appeal followed.
DISCUSSION
1. Rule 11(b)(2) Bailey contends that the district court violated Rule 11(b)(2) at the plea allocution by failing to ask him "whether he had been forced or threatened to plead guilty." Appellant's Br. at 17. But Bailey did not object to this purported error at any
time i n the district court below. We therefore review his claim only for plain error. United States v. Torrellas , 455 F.3d 96, 103 (2d Cir. 2006). On plain error review, Bailey is entitled to relief only if he can show that there was (1) an error, (2) that wa s plain, (3) that prejudicially affected his substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id

. Rule 11(b)(2) does not mandate any particular wording in a plea
allocution. See id. at 102 ("Rule 11 imposes strict requirements on what information the district courts must convey and determine before they accept a plea [ but] it does not tell them precisely how to perform this important task in the great v ariety of cases that come before them.") (quoting United States v. Maher , 108 F.3d 1513, 1520

- 21 (2d Cir. 1997) (internal quotation marks and alterations omitted). Rather, Rule 11(b)(2) requires only that, b efore accepting a guilty plea , " the court must a ddress the defendant personally in- 6

- open court and determine that that plea is voluntary and did not result from force, threats, or promises." Fed. R. Crim. P. 11(b)(2). Even assuming that the district court erred and that the error was " plain, " Bailey h as not shown that his substantial rights were affected

. Torrellas , 455 F.3d at 103. "A substantial right is affected if there is a reasonable probability that, but for the error, the defendant would not have entered the plea." United States v. Gonzales , 884 F.3d 457,
461 (2d Cir. 2018) ( internal quotation marks omitted ). On appeal, Bailey conte nds that
had the error not occurred , the case "might well have proceeded to trial , " Appellant's Br.
at 31 , but he does not argue that he would not have entered the plea "but for the error," Gonzales , 884 F

. 3d at 461

. According ly , any error did not substantially affect Bailey's right s , and the court did not plainly err in its plea allocution.
2. M otion to Withdraw Guilty Plea
We review the denial of a defendant 's motion to withdraw his guilty plea for abuse of discretion, examining findings of fact for clear error and reviewing questions of law de novo

. United States v. Albarran , 943 F.3d 106, 117 (2d Cir. 2019)

. We
consider whether the defendant "has raised a significant question about the voluntariness of the original plea," as well as: (1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the pl ea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just) ; and (3) whether the- 7

- government would be prejudiced by a withdrawal of the plea. Id

. at 117

- 18 (quoting United States v. Schmidt , 373 F.3d 100, 10 2

- 0 3 (2d Cir. 2004))

. First, Bailey has not raised a significant question as to the voluntariness of his plea. While Bailey says that a law enforcement official named "Thomas Kubick" suggested that the government would prosecute his family members if he did not plead guilty, he did not and has not identified who this person is or what exactly was said, and the government has represented both here and in the district court that no person working on its behalf made any such statement. Second , Bailey did not assert his legal
innocence in the district court

. Third, Baile y waited seven months to raise the issue
before the district court. We have found that a four

- month delay between a guilty plea
and a motion to withdraw the plea suppor ts denying the motion, id

. at 123 , and

" wait [ ing ] five months to file [a withdrawal] motion strongly supports

. . . finding that [the] plea was entered voluntarily , " United States v. Doe , 537 F.3d 204, 213 (2d Cir. 2008) (emphasis added) . Finally, the government would have been pre judiced by a withdrawal of the plea, as it would have had to prepare for trial a second time and again transport victim witnesses to testify

. Albarran , 943 F.3d at 123 (noting that the
need to locate w itnesses and prep are for trial again prejudices the prosecution )

. Therefore, the district court did not abuse its discretion in denying Bailey's motion to withdraw his guilty plea

.- 8

- 3. Bailey's Sentence

" This court review [s] the procedural and substantive reasonableness of a sentence under a deferential abuse

- of

- discretion standard." United States v. Richardson , 958 F.3d 151, 15 3 (2d Cir. 2020) ( internal quotation marks omitted ). A sentence is procedurally unreasonable if , inter alia , a district court " makes a mistake in its
G uidelines calculation

. " United States v. Cavera , 550 F.3d 180, 190 (2d Cir. 2008) (en banc)

. We consider " [a] sentence

. . . substantively unreasonable if it is manifestly unjust or shock[s] the conscience." Richardson , 958 F.3d at 15 3

- 54 ( internal quotation marks
omitted )

. Bailey argues that because fewer than six victims suffered economic loss
and the bulk of this loss fell on the g overnment , the district court should not have applied a two

- level enhancement for an offense involving ten or more victims

. See U.S.S.G. § 2B1.1(b)(2)(A)(i)

. The Sentencing Guidelines , however, define "victim" as "any individual whose means of i dentification was used unlawfully or without authority" where a case involves "means of identification." U.S.S.G. § 2B1.1 cmt. n.4(E) (ii) ; see also United States v. Je s u r um , 819 F.3d 667, 671 (2d Cir. 2016)

. Bail ey was convicted of three counts of aggravated identity theft based on his use of hundreds of
stolen identities. Therefore, the district court correctly applied U.S.S.G. § 2B1.1(b)(2)(A)(i)

.- 9

- Bailey also contends that because his scheme was "simple , " Appellant's Br.
at 42 , the district court should not have applied a two

- level enhancement for the use of sophisticated means , U.S.S.G. § 2B1.1(b)(10)(C)

. T he Guidelines define "sophisticated means" as "especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense," including "hiding assets or transactions, or
bo th ." Id . at § 2B1.1 cmt. n.9(B). E ach step in a scheme need not be elaborate if " the total scheme was sophisticated in the way all the steps were linked together

. " United States v. Jackson , 346 F.3d 22, 25 (2d Cir. 2003) ; see also United States v. Fof anah , 765 F.3d 141, 146 (2d Cir. 2014) ( noting that " tactics to conceal offense conduct " and "repetitive and coordinated conduct" indicate sophistication)

. Bailey moved money between several
bank accounts and used his businesses as " fronts" to hide his activity. T hus, t h e district
court correctly applied U.S.S.G. § 2B1.1(b)(10)(C)

. Bailey also argues that his sentence was substantively unreasonable based on the comparatively shorter sentences received by his co

- conspirators. While the district court was required to consider nationwide sentence disparities, it was not required to consider disparities between the sentences of Bailey and h is co

- defendants.
See United States v. Ghailani , 733 F.3d 29, 55 (2d Cir. 2013). Bailey has not shown that his sentence is "manifestly unjust" or outside "the range of permissible decisions." Richardson , 958 F.3d at 15 4 (citations omitted). Accordingly , the district court 's sentence- 10

- was both procedurally and substantively reasonable, and it did not abuse its discretion in sentencing Bailey.
* * *
We have considered Bailey's remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district
court. FOR THE COURT: C atherine O'Hagan Wolfe, Clerk