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w . v i l l a no va . e du/thir dc ir c uit_2004/912NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

__________ NO. 02-2604

__________ UNITED S TATES OF AMERI CA

v. CHRIST OPHER RI TTER, Appellant

_________ On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Crimi nal No. 98-cr -00131-1) Distri ct Judge: Honorable Herbert J. Hutt on

__________ Submitte d Under Third Circ uit LAR 34.1(a)

February 25, 2004 Be for e: R EN DE LL , BA RR Y a nd F ISH ER , Circu it Judges
.

(Fil ed March 26, 2004 )

__________ OPI NION

__________ RE ND EL L, Circuit

Judge
. Christ opher Ritt er appeal s the Dist rict Court’s Order

denyi ng his habeas corpus claim (Petition er’s M otion to Va cate, S et As ide or C orrect a Sen tence pursu ant to 28 U .S.C. § 225 5). Ritte r con tends that he wa s entitled to a he aring o n his c laim th at his- 2 -

guilt y pl ea was induced by

his attorney ’s fal se assur ances that his sentence would not exceed five years. He also conte nds that his pl ea to the charge of ai ding and abetting using or c arrying a fi rearm duri ng and in furt herance of a crime of viol ence was not kno win g and volu ntary, and in any ev ent lac ks a factua l basis. F urther , and in respo nse to the inquiryof a panel of t his Court in is suing the Certi ficat e of Appealabil ity , Ritter suggests that he may be ent itl ed to a re mand to the Dist rict Court to expl ore the i ssue of waiver and cause and prejudice, although he urges that the government’s failure t o raise the affirma tive de fens e of p roced ural de fault b elow forec loses its c onsid eration on ap peal. The Distri ct Court ha d subject matter juri sdict ion under 18 U.S. C. § 3231 and 28 U.S.C. § 2255 and we exerci se jur isdi ction pur suant t o 28 U.S.C. §§ 1291 and 2253.

I. Ritte r was charged wit

h numerous federa l cri minal offens es based upon a s eries of violent robberi es and burgl aries of resi dences and busi nesses in Pennsylvania and New Jersey , involving a los s to vi ctims of ove r $1 mill ion in antiques, coins, jewelry , and other valuabl es. Rit

ter, who worked in the ant ique busi ness, used his knowle dge of the whereabouts and va lue of goods owned by his ass ociat es in t

he anti ques tr ade and directe d his c o-co nspira tors to th ese loc ations, id entifying items to steal. Ritte r was indi cted with one count of Hobbs Act robber y cons piracy , one count of conspir acy t o commit int erst ate transport ation of stol en propert

y, three c ounts of Hobbs- 3 -

Act robbery , one count

of using and carry ing a fi rearm in f urther ance of a viol ent crime, and th ree co unts o f intersta te transp ortation of sto len pro perty. He entere d a gu ilty plea to all cou nts. A t senten cing, th e D istrict Co urt gra nted a dow nw ard d epartu re pu rsuan t to section 5K1.1 of the sentencing guidelines, and sentenced Ritt er to 196 months’ incarc erati on, thr ee ye ars’ s upervis ed rele ase, a $900 mandat oryspecialassess ment, and $44 3,13 0 in restitu tion
. In grant ing the Certifi cate of Appeala bili ty , a moti ons panel of t his Court queried whether one of Rit

ter’ s iss ues was procedur ally default ed on direc t appeal , and whether Ritte r could overcome such default by demonst

rating cause and pre

judice . Ritter contends t

hat it was improper for

proceduraldefault

to have been r aised sua s pon te as it was the govern ment’s ob ligation to raise and p reserve the de fense. W e decline R itter’s invit ation to resol ve this questi on because, in any event, it i s clear

that hi s underl yi ng claim s lack m erit.

II. Ritter f inds fault w ith the m anne r in w hich th e D istrict Co urt rejec ted his contention tha t ineffective assistance of his cou nsel tainted his guilty plea. In particular, Ritter a rgue s that the Distric t Cou rt impro perly relied upo n the p lea co lloquy, w hen it should have cons idered Ri tter ’s affi davits and held a hearing at whic h evidence coul d be adduced. Rit

ter foc uses on the fact t hat, during hi s coll oquy, he underst ood the guide line- 4 -

range before departur e, but had been led as tray

by hi s counsel as to t

he effect of

the depa rture. H e furth er con tends that the pape rs he f iled in th e D istrict Co urt dem onstra te that he was assured t

hat his sentence would be no more than fi ve years, based on downw ard departures att ributable t o his plea and cooperation, and other factors. A distri ct court ’s deci sion t o deny a he aring on a § 2255 pe tition is reviewed for abu se o f dis creti on. Gov’t of Virgi n Islands v. Nichol as , 759 F.2d 1073, 10 75 (3d C ir. 1985). Section 2255 provi des that a heari ng on a defendant’ s peti tion i s not re quired where “the moti on and the fi les and r ecords of t he case conclusivel y show that the prisone r is e ntitled to no r elie f.” The Dist rict Court here c onclusi vely so found. Rit

ter adduced no proof t

hat he was promis ed or assur ed of a speci fic sent ence, but , rat her, t hat
co un se l g av e h im hi s “ be st e sti m ate ” o f w ha t se nt en ce m ig ht be gi ve n i f h e p led gu ilty, namely , five year s in pri son. The pl ea agreement and the re cord of the change of plea hearing are repl ete with referenc es to t he fact t hat the Distri ct Court would make t he determi nations with res pect t o his sent ence under t he sentenc ing guidel ines, that t he Distri ct Court c ould decl ine to f ollow recommendati ons, and t hat no promis es had been made with respe ct to t

he sentenc e that

the Dist rict Court would impose. The Distri ct Court als o advised Rit

ter t hat the filing of a § 5K1.1 motion was at the sol e discr etion of the go vern men t, with th e D istrict Co urt hav ing lim ited ab ility to review its refus al to file such a motion. In addition, t he Distr ict Court

specifi call y as ked Ritt er whether anyone had advised him that t

he Distr ict Court

would be leni ent at

the time of sentenci ng; Ritter- 5 -

resp ond ed “ no.” Given the record, the D istrict Court did not ab use its discretion in den ying Ritter’s petition for an e videnti ary hearing. Whatever counselhad told Ri tter , cl early there was no prejudi ce because Rit

ter was ful ly

advised at

the time of the taking of the pl ea that the Dis trict C our t wa s no t par ty to an agr eem ent o r pro mis e of any k ind
. With respec t to Rit

ter’ s contention that

his pl ea to the charge of using or carr yi ng a fir ea rm du rin g a nd in fu rth er an ce of a c rim e o f v io len ce w as no t k no w in g a nd vo lu nt ar y, again, the tr anscript from the sentencing hearing proves to t he contrary . A lengthy sentencing hearing was hel d on March 4, 1999, at which Ritt er did not

advise t he Distr ict Court of any

promise pur

portedly made by

counsel. And, after

the Dist rict Court had imposed the s entence of 196 months, t he Court inquired of the defense i f there were any que stion s, an d R itter h ad n o qu estio ns for th e C our t. Ritter a lso attac ks the allege d vo luntary na ture of the ple a bec ause he arg ues it lacked a fac tual ba sis. Rule 11(f) provides t hat “[n] otwiths tanding t he acceptance of a plea of gui lty , the court s hould not ent er a judgment
. . . without maki ng such inqui ryas shallsati sfyit t

hat the re is a factualbasis f or the pl ea.” Fed. R.Crim. P. 11(f) ( 2001). The Dis trict C our t’s fin din g of a fa ctua l bas is fo r a p lea is rev iew ed for a n ab use of d iscre tion
. Un ited Sta tes v. C efara tti , 221 F .3d 50 2, 509 (3d C ir. 2000 ). Ritter’s c laim is sp ecifica lly levele d at the charg e of a iding a nd ab etting th e use and c arrying o f a fire arm in connecti on with the home i nvasion r obbery of a coin deal er. We note t hat Ritter di d not- 6 -

raise this argu men t befo re the tria l court, n or on direct a ppea l. Yet e ven w ere it pro perly pre serv ed, it h as n o m erit. Under 18 U.S.C. § 2(a) , “[w]hoever commits an offens e against the Unite d States or aids , abet s, couns els, commands, induces or procur es it s commissi on, is punishabl e as a prin ci pal .” Lia

bi li ty for ai di ng and abet

ti ng r equ ir es pr oof

th atth e un derlyin g crime
occ urre d an d th at the defend ant k new of th at cri me and sou ght to ac com plish it. See United Stat es v. Gordon , 2 90 F. 3d 5 39, 547 (3 d Ci r. 200 2) . Mer e kn owl edg e of th e crime is not enough; rat

her, t he government must

show that t

he defendant had t

he specif ic int ent to fa cilitat e the crim e. Id. In Gordon , we held t hat an ai ding and abetting vi olati on of § 924(c) does not requi re that the defendant

possesse d or contr olled t he weapon so long as the def

endant’s acti ons were “suffi cient ly ‘int ertwined wit

h, and hi s cri minal object ives fur

thered by ’ the ac tions of the participant who did car ryand use the f

irear m.” Id. (citing Un ited Sta tes v. G arth , 188 F.3d 99, 113 (3d Cir. 1999)). We have no diffi culty concludi ng that t

he record provides a firm basis f or Ritt er’s a iding and a

betting convict ion. 

### The evidence of Ritter’s knowledge of the violent nature of his associate s and that the robberies were conducted at gunpoint, belies Ritt er’s claims that there was no factual basis for his conviction. Rit

ter re gularly

had convers ations wi

th these associ ates after the commiss ion of their crimes,and was made aware of their modus operandi . Ritter knew that during t

hese dangerous home invasions , the victims were treat ed in a vi olent manner- 7 -

and w ere at times held a t gunpo int. There is no q uestion but that R itter’s actions were inter twined with and his cr iminalobject ives fur thered by

his ass ociat es who carri ed and used a firea rm. G iven h is kno wled ge tha t gun s we re use d by his a ssocia tes and his specifi c inte nt to make t he underlying cri mes succeed, Ritte r’s cont ention t hat the re was no b asis fo r his ple a to aid ing an d abe tting is rem arkab le, and unsu ccess ful.

III. Ac cord ingly, we will A FFIR M the O rder o f the D istrict Co urt.- 8 -