J. Garvan Murtha, Senior District Judge of the United *

States District Court for the District of Vermont, sitting

by designation.

1

08-4246-cr

United States v. Baston

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”

UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE

WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE

PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER

WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE

AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 9th day of December, two thousand nine.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PETER W. HALL,

9 Circuit Judge,

10 J. GARVAN MURTHA,

11 District Judge.*

12

13 - - - - - - - - - - - - - - - - - - - -X

14 UNITED STATES OF AMERICA, 

15 Appellee,

16

17 -v.- 08-4246-cr

18 WILSON JAMES BASTON, JR., also known

19 as Will James, also known as Wil

20 James,
2

1 Defendant-Appellant.

2 - - - - - - - - - - - - - - - - - - - -X

3

4 APPEARING FOR APPELLANT: J. SCOTT PORTER, Seneca Falls,

5 New York.

6

7 APPEARING FOR APPELLEE: GLEN G. McGORTY (Preet Bharara

8 and Daniel A. Braun, on the

9 brief), United States Attorney’s

10 Office for the Southern District

11 of New York, New York, New York.

12

13 Appeal from a judgment of the United States District

14 Court for the Southern District of New York (Baer, J.).

15

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17 AND DECREED that the judgment of the district court be

18 AFFIRMED. 

19

20 Wilson Baston appeals a judgment sentencing him to

21 seventeen concurrent terms of 135 months imprisonment after

22 he pled guilty to multiple counts of mail and wire fraud.

23 Baston argues on appeal that his sentence should be vacated

24 both because the government breached the plea agreement and

25 because his own trial counsel provided constitutionally

26 ineffective assistance. He also contends that the

27 restitution order is improper.

28

29 We assume the parties’ familiarity with the underlying

30 facts, the procedural history, and the issues presented for

31 review.

32

33 [1] Baston argues that the government breached the terms of

34 the Plea Agreement in its sentencing memorandum and at the

35 sentencing hearing. We “review interpretations of plea

36 agreements de novo and in accordance with principles of

37 contract law.” United States v. Griffin, 510 F.3d 354, 360

38 (2d Cir. 2007) (quoting United States v. Riera, 298 F.3d

39 128, 133 (2d Cir. 2002)). But where--as here--a defendant

40 fails to preserve an objection to the government’s purported

41 breach of a plea agreement, plain error review applies. 

42 Puckett v. United States, 129 S. Ct. 1423, 1428 (2009). 

43 Plain error review allows (but does not require) vacatur or

44 reversal if the defendant proves: (1) error; (2) that is

45 “clear or obvious, rather than subject to reasonable

46 dispute”; (3) that affected substantial rights, “which in
3

1 the ordinary case means . . . that it affected the outcome

2 of the district court proceedings”; and (4) that “seriously

3 affect[s] the fairness, integrity or public reputation of

4 judicial proceedings.” Id. at 1429 (internal quotation

5 marks omitted). Thus, our ability to remedy the error is

6 “strictly circumscribed.” Id. at 1428. “Meeting all four

7 prongs is difficult, ‘as it should be.’” Id. at 1429

8 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83

9 n.9 (2004)). 

10

11 Baston asserts that the government breached when it

12 adopted a higher loss figure in the Revised Pre-Sentence

13 Report (“PSR”) and, separately, when it responded to an

14 inquiry of the court at sentencing by disclaiming any reason

15 to question the accuracy of the revised loss figures. 

16 Regarding the sentencing memorandum, it is doubtful that the

17 government’s memorandum constitutes a breach of any term of

18 the Plea Agreement. By the time of the government’s

19 memorandum, Baston’s own lawyer had conceded the accuracy of

20 the Revised PSR. It is certainly possible (and Baston has

21 not convincingly argued otherwise) that the district court

22 would have imposed the sentence called for in the Revised

23 PSR on the basis of Baston’s concession alone, regardless of

24 the government’s statement in its memorandum. 

25

26 Regarding the sentencing hearing, the government’s 

27 conduct in this case closely parallels the conduct at issue

28 in Riera. And for the same reasons that the court found no

29 error there, see 298 F.3d at 134, we find no error here. 

30

31 [2] Baston also contends that his trial counsel provided 

32 constitutionally ineffective assistance by conceding the

33 accuracy of the Revised PSR and by failing to scrutinize and

34 challenge the loss calculations in the Revised PSR.

35 Ineffective assistance claims are governed by the familiar

36 standard enunciated in Strickland v. Washington, 466 U.S.

37 668 (1984). “When faced with a claim for ineffective

38 assistance of counsel on direct appeal,” this Court may:

39 “(1) decline to hear the claim, permitting the appellant to

40 raise the issue . . . [in] . . . [a] habeas corpus

41 [petition] . . . ; (2) remand the claim to the district

42 court for necessary factfinding; or (3) decide the claim on

43 the record before [the Court].” United States v. Morris,

44 350 F.3d 32, 39 (2d Cir. 2003). Though these three options

45 remain available to us, there is a “baseline aversion to

46 resolving ineffectiveness claims on direct review,” id.
4

1 (quoting United States v. Salameh, 152 F.3d 88, 161 (2d Cir.

2 1998)), and the Supreme Court has stated a preference that

3 ineffective assistance claims be resolved in a habeas

4 petition rather than on direct appeal. Massaro v. United

5 States, 538 U.S. 500, 504 (2003). Adhering to this

6 guidance, we dismiss Baston’s ineffective assistance claims

7 without prejudice to their being re-filed as part of any

8 future habeas proceeding.

9

10 [3] Baston also argues that the amount of restitution 

11 ordered by the district court is improper and should be

12 vacated. We review an order of restitution for abuse of

13 discretion, and we will find error under this standard only

14 if the restitution order “rests on an error of law, a

15 clearly erroneous finding of fact, or otherwise cannot be

16 located within the range of permissible decisions.” United

17 States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009)

18 (internal quotation marks omitted). Because Baston did not

19 object at sentencing to the restitution amount, we review

20 his claim for plain error. See United States v. Nucci, 364

21 F.3d 419, 421 (2d Cir. 2004). Baston fails to articulate a

22 theory of error that is sufficiently “plain” to withstand

23 plain error review.

24

25 Finding no merit in Baston’s remaining arguments, we

26 hereby AFFIRM the judgment of the district court.

27

28

29 FOR THE COURT:

30 CATHERINE O’HAGAN WOLFE, CLERK

31 By:

32

33

34 ___________________________