11-5265-cr United States v. Doyle 

### 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 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**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 26 th** **day of November, two thousand thirteen.** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **CHESTER J. STRAUB,** 8 **Circuit Judges .**  9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 13 **Appellee ,**  14 15 **-v.- No. 11-5265-cr** 16 17 **THOMAS A. DOYLE,** 18 19 **Defendant-Appellant .**  20 - - - - - - - - - - - - - - - - - - - -X 21 22 **FOR DEFENDANT-APPELLANT:** JANE S. MEYERS, Brooklyn, NY. 23 24 **FOR APPELLEE:** AMANDA KRAMER (Justin Anderson, 25 on the brief ) forPreet Bharara, 26 United States Attorney for the 27 Southern District of New York. 28

1Appeal from a judgment of the United States District 1 Court for the Southern District of New York (McMahon, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 4 **AND DECREED**that the judgment of the district court be 5 **AFFIRMED**

. 6 7 Defendant-appellant Thomas A. Doyle appeals his wire 8 fraud conviction and sentence of, inter alia , 72 months’ 9 imprisonment and $880,000 in restitution. We assume the 10 parties’ familiarity with the underlying facts, the 11 procedural history, and the issues presented for review. 12 Rule 11. Doyle argues that the district judge 13 participated in plea discussions in violation of Federal 14 Rule of Criminal Procedure 11(c)(1). Doyle cites the 15 court’s admonition that there would be a deadline for 16 “acceptance of responsibility points” and that, “if” Doyle 17 intended “to take a plea,” it was in his “interest to do it 18 before June 21” so that he could have “one extra point 19 shaved off [his] guideline number.” 20 “Issues arising under Rule 11(c)(1) are highly 21 fact-specific and, as a result, such situations must be 22 analyzed in terms of the purposes of the rule, and not with 23 illogical rigidity.” United States v. Paul , 634 F.3d 668, 24 672 (2d Cir. 2011) (internal quotation marks omitted). If, 25 as here, a purported Rule 11(c)(1) violation is not 26 presented to the district court, we review the claim for 27

2plain error. SeeUnited States v. Davila , 133 S. Ct. 2139, 1 2147 (2013). In conducting plain-error analysis, we 2 consider whether there was “(1) [an] ‘error,’ (2) that is 3 ‘plain,’ and (3) that ‘affect[s] substantial rights.’” 4 Johnson v. United States , 520 U.S. 461, 466-67 (1997) 5 (quoting United States v. Olano , 507 U.S. 725, 732 (1993)). 6 “If all three conditions are met, [we] may then exercise 7 [our] discretion to notice a forfeited error, but only if 8 (4) the error ‘seriously affect[s] the fairness, integrity, 9 or public reputation of judicial proceedings.’” Id. 10 (quoting Olano , 507 U.S. at 732 (other internal quotation 11 marks omitted)). 12 Doyle’s claim does not survive the plain-error test 13 because, even if the court’s remark were error, Doyle has 14 not shown that it affected his substantial rights. Doyle 15 “must show a reasonable probability that, but for the error, 16 he would not have entered the plea.” Davila , 133 S. Ct. at 17 2147 (internal quotation mark omitted). No matter how much 18 pressure the district court might have put on Doyle to plead 19 guilty before the June 21 deadline, he did not succumb to 20 that pressure. He pled guilty on July 11, 2011, nearly 21 three weeks after the deadline. Doyle has not shown a 22 reasonable probability that, if the district court had not 23 commented as it did, he would have gone to trial. 24

3Restitution and Plea Agreement. “A defendant is 1 deprived of due process when the government breaches a 2 plea-agreement provision on which the defendant relied ‘in 3 any significant degree’ when entering the guilty plea.” 4 United States v. Eberhard , 525 F.3d 175, 178 (2d Cir. 2008) 5 (quoting Santobello v. New York , 404 U.S. 257, 262 (1971)). 6 “There is [] a very limited exception to the need for a 7 remedy for a plea agreement breach by the government where 8 the violation is so minor that it does not cause the 9 defendant to suffer any meaningful detriment. In assessing 10 whether a defendant suffered a meaningful detriment, the 11 critical question is what the defendant reasonably 12 understood to be the terms of the plea agreement, and 13 whether his or her reasonable expectations have been 14 fulfilled.” United States v. Vaval , 404 F.3d 144, 155 (2d 15 Cir. 2005) (citation omitted). Since the alleged breach was 16 not presented to the district court, we review only for 17 plain error affecting substantial rights and the fairness of 18 the judicial proceedings. SeeUnited States v. MacPherson , 19 590 F.3d 215, 218-19 (2d Cir. 2009). 20 Doyle fails to show a more than de minimis breach, if 21 there was a breach at all, of the plea agreement in the 22 government’s request for and district court’s setting of 23 $880,000 in restitution. The plea agreement indicated 24

4restitution of only $105,000, but also stated a forfeiture 1 amount of $880,000. In raising Doyle’s restitution figure 2 to match the forfeiture amount, the district court made 3 clear that Doyle’s combinedfinancial obligation under the 4 forfeiture and restitution orders was capped at $880,000, 5 the amount of forfeiture to which Doyle had already agreed 6 and does not challenge on appeal. 7 The government and district court merely chose to 8 channel the $880,000 Doyle owed to the government to the 9 victim, who was suffering a loss of that amount because he 10 did not yet have possession of the painting. Either way, 11 Doyle owed $880,000 to someone before and after the alleged 12 breach of the plea agreement. Changing to whom he owed it 13 did not affect Doyle’s substantial rights or the fairness of 14 the proceeding. 15 Loss Calculation. Doyle’s supplemental pro sebrief 16 argues that Judge McMahon should have granted a continuance 17 so that the painting could be appraised in connection with a 18 loss determination. This argument fails for three reasons. 19 [1] Doyle can hardly fault the Probation Office and 20 district court for using the $70,000 to $120,000 range to 21 which he agreed in the plea agreement. 22 [2] A sentencing court has “broad discretion” over 23 scheduling. United States v. Doe , 239 F.3d 473, 475 (2d 24

5Cir. 2001). We will not vacate a sentence on the basis of 1 improper denial of a continuance unless it (1) substantially 2 impaired the defendant’s opportunity for a fair sentence and 3 (2) was arbitrary. Id. Doyle has made neither showing. 4 [3] A “loss” under § 2B1.1 “is the greater of actual 5 loss or intended loss.” U.S.S.G. § 2B1.1 Application Note 6 3(A). Doyle intended to and did sell an 80% ownership 7 interest then worth $620,000 for $880,000, an intended loss 8 of $260,000 at the then-prevailing market rate. The 9 stipulated loss range of $70,000 to $120,000 was therefore a 10 conservative estimate of loss. 1 11 We have considered all of Doyle’s remaining arguments 12 and conclude that they are without merit. The judgment of 13 the district court is hereby affirmed. 14 15 FOR THE COURT: 16 CATHERINE O’HAGAN WOLFE, CLERK 17

1Doyle initially challenged his sentence as procedurally and substantively unreasonable for reasons other than the purported loss calculation error. Doyle has now withdrawn those arguments. SeeMotion Order, Oct. 22, 2013, ECF No. 125. 6