17-3988 U.S. v. McCutcheon

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 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY 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 Seco nd Circuit, held at the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, on the 13 th day of March, two thousand nineteen.

PRESENT: R OBERT D. S ACK , R EENA R AGGI , S USAN L. C ARNEY , Circuit Judges

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_____________ _______________ _____________
U NITED S TATES OF A MERICA , Appellee
,
v. No. 17-3988

A NTHONY M C C UTCHEON , Defendant-Appellant
,
T ROY C OOLEY , M ORRELL B USTER , A NDRE O WENS , C ARMELLA R IVERA , D EANDRE S PARKS , W ILLIAM J EFFERSON , M ARKIEL H ALL , A LICIA M AGHETT , Defendants

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_____________ _______________ _____________2 FOR APPELLANT: V IDA M. A LVY , Esq., New York, NY.

FOR APPELLEE: T IFFANY H. L EE , Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Rochester, NY.
Appeal from a judgment of the United Stat es District Court for the Western District of New York (Skretny, J. ).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on December 11, 2017, is
AFFIRMED

. Anthony McCutcheon appeals from a judgme nt of conviction entered following his guilty plea to conspiracy to possess with intent to distribute, and to distribute, 28 grams or more of cocaine base, in violation of 21 U.S. C. §§ 841, 846; and po ssession of a firearm in furtherance of drug trafficking, in vi olation of 18 U.S.C. § 924(c)(1)(A)(i).
McCutcheon argues that his guilty plea failed to comport with Federal Rule of Criminal Procedure 11 and, as a result, his plea was not knowing and voluntary. He asserts as
well that the District Court abused its discretion in denying his motion to withdraw his guilty plea, made before sentencing but several months after his guilty plea was entered. Finally, in a pro se submission, McCutcheon challenges th e denials of his motion to suppress evidence
and to conduct a Franks hearing. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to explain
our decision to affirm.

A. Rule 11(b) Arguments

McCutcheon asserts that the District Court viol ated Rule 11 by failing to comply with Fed. R. Crim. P. 11(b)(1)(B), (b)(1)(G), (b )(2), and (b)(3). Because McCutcheon did not contemporaneously object to the Rule 11(b)(1 )(B)–(b)(1)(G), and (b)(3) errors, we review these challenges for plain error only. See United States v. Lloyd , 901 F.3d 111, 119 (2d Cir. 2018). Under that standard, McCutcheon must show that “(1) there was error, (2) the error3 was plain, and (3) the error prejudicially affect ed his substantial rights; if such error is demonstrated, we will reverse, still, only when (4) the error seriously affected the fairness, integrity or public reputati on of judicial proceedings.” Id. (internal quotation marks omitted). The third, “substantial rights,” prong requires a defendant to show “a reasonable probability that, but for the error, he would not have entered the plea.” Id ; see also United States v. Dominguez Benitez , 542 U.S. 74, 83 (2004). 1
1) Rule 11(b)(1)(B) requires the District Cour t to inform the defendant of, and ensure that the defendant understands “the right to pl ead not guilty, or having already so pleaded, to persist in that plea.” Before taking McCutc heon’s plea, the court explained: “Count 1, you have a choice of pleading guilty or not guilty, Mr. McCutcheon, what is your plea? . . . And with respect to Count 3, you can plead guilty or not guilty. What is your plea?” App’x 297, 298. The District Court’s failure to track precise ly the statutory language does not amount to Rule 11 error in this case. In any event, “[ h]aving already entered a plea of not guilty [McCutcheon] obviously un derstood that right.” United States v. Pattee , 820 F.3d 496, 506 (2d Cir. 2016).
2) Rule 11(b)(1)(G) requires that, “[b]efore the court accepts a plea of guilty[,] . . . the court must address the defendant personally in open court” and “must inform the defendant of, and determine that the defendants understand s . . . the nature of each charge to which the defendant is pleading.” The rule’s strictur es may not be satisfied “merely by making a general mention of information set forth in a written plea agreement.” Lloyd , 901 F.3d at
120.

1 McCutcheon preserved his Rule 11(b)(2) challenge by moving to withdraw his plea in part on the ground that he was coerced into pleading guilty. Thus , we review that challe nge for harmless error. See United States v. Gonzales , 884 F.3d 457, 461 (2d Cir. 2018). An error is harmless if it does not affect a defendant’s “substantial rights.” Fed. R. Crim. P. 11(h). As in plain error review , a “substantial right” is affected where a reasonable probability exists that “but for the error, the defendant would not have entered the plea.” Gonzales , 884 F.3d at 461 (internal alterations omitted). In the context of harmless error review, th e government—rather than the defendant—“bears the burd en of showing harmlessness.” Id.4 McCutcheon’s plea colloquy suffered from de ficiencies similar to those we identified
in Lloyd , 901 F.3d at 120–21, and have found elsewhere, see, e.g. , United States v. Blackwell , 199 F.3d 623, 626 (2d Cir. 1999). The District Court neither read aloud the indictment nor explained the elements of each count charged to McCutcheon. Instead, it generally directed McCutcheon’s attention to the plea agreement. Although the plea agreement did spell out the charges and their elements, this sort of “i ncorporation by referenc e” approach to plea hearings does not satisfy Rule 11(b)(1)(G). The district judge recited the charges but, as he acknowledged, he did so only in “summary fa shion,” without articulating or elaborating on the elements of each offense. App’x 279. Com pounding this shortcoming, the judge did not
ask McCutcheon to describe in his own words what he did that made him guilty of the two charges to confirm his understanding of th e charges’ “nature.” Without reading the indictment, explaining the elements, or asking McCutcheon to allocute to the elements of each offense, the District Court could not be certain that McCutcheon understood the charges.
Nevertheless, on plain error review, we ca nnot conclude that vacatur is warranted. McCutcheon has not shown “a reasonable probabi lity that, but for the error, he would not have entered the plea.” Torrellas , 455 F.3d at 103 (internal quotation marks omitted). To satisfy this prong of plain error, McCutcheon bears a “heavy burden,” Lloyd , 901 F.3d at 120, and for at least three reasons, he has not carri ed that burden. First, the strength of the government’s case against McCutcheon sugges ts that he would have pleaded guilty irrespective of any Rule 11 error. Had he gone to trial, the jury likely would have heard wiretaps of McCutcheon’s phone conversati ons in which he and other co-defendants discussed the distribution of crack cocaine. Ju rors would also have learned that a warranted search of McCutcheon’s home uncovered drugs, drug paraphernalia, and a firearm. Second, under the plea agreement, the government agr eed to withdraw a § 851 Information that increased the applicable mandatory minimum prison sentence from five years to ten. McCutcheon thus stood to gain significantly from pleading guilty. Finally, the record does not suggest that McCutcheon was in fact confus ed about the nature of the crimes to which he pleaded guilty. Accordingly, although the Di strict Court erred by failing to take steps to5 ensure that McCutcheon understood the natu re of the charges against him, we cannot
conclude that the e rror prejudiced him.
3) Rule 11(b)(2) requires the District Court to “determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).” McCutcheon argues that the District Court ran afoul of this requirement by “fail[ing] to address the defendant in open court regarding his motion for new counsel.” Appellant’s Br. 45. The argument fails because McCutcheon twice confirmed to the district judge, under oath, that he was pleading guilty of his own volition; he affirmed that he was then satisfied with his legal representation; an d he specifically acknowledged that Mr. Spitler, a second lawyer appointed by the court to assist McCutcheon, “helped out” as McCutcheon deliberated whether to plead guilty. App’x 276.
4) Rule 11(b)(3) requires that the District Court, before entering judgment,
“determine that there is a factual basis for the plea.” This rule is “designed to ‘protect a defendant who is . . . pleading voluntarily . . . without realizing that his conduct does not actually fall within the charge.’” United States v. Smith , 160 F.3d 117, 121 (2d Cir. 1998) (quoting McCarthy v. United States , 394 U.S. 459, 467 (1969)). To comply with Rule 11(b)(3), the “district court must simply satisfy itself that the conduct to whic h the defendant admits is in fact an offense under the statutory pr ovision under which he is pleading guilty.” United
States v. Robinson , 799 F.3d 196, 199 (2d Cir. 2015) (internal quotation marks omitted). The court may identify the factual b asis for the plea anywhere in the record, including in “the presentence report or whatever means is appropriate in a specific case.” Smith , 160 F.3d at 121 (internal quotation marks and alterations omitted).
McCutcheon argues that the District Co urt failed to comply with Rule 11(b)(3) because it did not elicit directly from McCutc heon a statement of a factual basis for the plea. Such a procedure is certainly ideal, and as alre ady observed, the District Court’s failure to follow it here compounds its Ru le 11(b)(1)(G) error. Neverthele ss, we have never held that Rule 11 requires district courts to direct defe ndants to explain in their own words the factual basis for their guilty plea. See United States v. Torrellas , 455 F.3d 96, 102 (2d Cir. 2006) (observing that Rule 11 “imposes strict require ments on what information the district courts6 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 vari ety of cases that come before them” (internal alterations and quotation marks omi tted) (emphasis in original)).
McCutcheon’s plea agreement laid out in fo ur paragraphs facts establishing each
element of the two relevant counts. McCutche on signed this agreement and, at the plea hearing, he affirmed the accuracy of the fact s contained therein supporting those elements. Moreover, McCutcheon’s presentence report se ts forth both the relevant facts, and McCutcheon’s acknowledgment of the accu racy of those facts and acceptance of responsibility for the related crimes during his presentence interview. See Lloyd , 901 F.3d at 115 (identifying no Rule 11(b)(3 ) violation where the defendant “acknowledged the accuracy of the facts as set forth in his written plea agreement” and where the district court adopted the PSR, which set out the relevant facts). Mc Cutcheon has thus failed to establish any Rule 11(b)(3) error.
In sum, McCutcheon fails to show that any Rule 11 error warrants vacatur.

B. Motion to Withdraw Plea
Approximately three months after pleading guilty, McCutcheon moved to withdraw his guilty plea. He urged that his plea w as not knowing and volu ntary because (1) he erroneously believed he would no t be afforded counsel at trial; (2) the AUSA pressured him into pleading; and (3) he is not guilty of th e charges. Contrary to McCutcheon’s contentions,
the District Court did not abuse its disc retion by denying McCutcheon’s motion.
A defendant may withdraw his plea before sent encing if he “can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). To determine whether the defendant has presented a “fair and just re ason,” a district court “should consider, inter alia: (1) the amount of time that has elapse d between the plea and the motion; (2) whether the defendant has asserted a claim of legal innocence; and (3) whether the government would be prejudiced by a withdrawal of the plea.” United States v. Doe , 537 F.3d 204, 210 (2d Cir. 2008). Where a defendant disputes the volun tariness of his guilty plea, he “must raise a significant question about the voluntariness of the original plea” to support withdrawal. Id. at7 211. We review a district court’s denial of a motion to withdraw a plea for abuse of
discretion. Id.
The record amply supports the District Court’s decision to deny withdrawal. A substantial amount of time—roughly three m onths—had elapsed betw een the plea and the motion. As we have commented, “the longer the elapsed time, the less likely withdrawal would be fair and just.” United States v. Schmidt , 373 F.3d 100, 102 (2d Cir. 2004); see also
United States v. Whalen , 101 F.3d 1393 (2d Cir. 1996) (unpublished) (finding no abuse of
discretion in court’s denial of mo tion to withdraw guilty plea where inter alia three months elapsed between defendant’s plea and motion ). Further, the District Court reasonably
concluded that the record undermined McCutcheon’s claim of actual innocence: McCutcheon had already averred that the facts set forth in the plea agreement were true; he again stipulated and acknowledged the factual basis for his plea during his pre-sentence interview with a probation officer; and, as the Di strict Court was aware, the government had marshaled significant evidence against McCutcheon.
The District Court also reasonably rejected McCutcheon’s belated assertions that he erroneously believed he would no t be afforded counsel at trial and that the AUSA pressured him into pleading guilty. At the plea colloquy , the District Court provided McCutcheon with

a second counsel with whom to consult, hardly an action that would lead a defendant to think he would be without counsel. Further, th e court described a scenario that, should McCutcheon decide to proceed to trial, pl ainly contemplated repr esentation. McCutcheon was told his trial counsel could “question witnesses, challenge the evidence, put on a defense, subpoena witnesses for you, cross- examine witnesses.” App’x 283. The District Court also repeatedly took steps to ensure that McCutcheon had sufficient time to reflect on his decision before entering a guilty plea. Th us, the judge twice urged McCutcheon to “take whatever time” he needs. App’x 260. He assured McCutcheon that he would postpone the hearing if McCutcheon was not ready to ente r a plea. McCutcheon therefore has failed to substantiate his request to withdraw his plea wi th a “fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B).8 C. Other Arguments
Because McCutcheon has not presented any Ru le 11 challenge that warrants vacatur, we treat as waived his challenges to the Dist rict Court’s orders regarding his motion to suppress and his request for a Franks hearing. United States v. Lasaga , 328 F.3d 61, 63 (2d Cir. 2003) (“A defendant who pleads guilty uncondit ionally admits all elements of the formal charge and, in the absence of court-approved reservation of issues for appeal, waives all challenges to prosecution except those going to th e court’s jurisdiction.”). In any event, we conclude that no hearing was warranted and th at suppression was correctly denied because, at the time of the challenged search (in 2013), the Supreme Court had not yet decided Riley v. California , 573 U.S. 373 (2014). Before Riley was decided, the officers could reasonably rely on
United States v. Robinson , 414 U.S. 218 (1973), to support the search. See United States v. Aguiar
, 737 F.3d 251, 259 (2d Cir. 2013); United States v. Leon , 468 U.S. 897, 921–23 (1984).

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We have considered McCutcheon’s remain ing arguments and conclude that they are without merit. The District Court’s judgment is AFFIRMED

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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court