12-4451 United States v. Williams, et al.



### 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 29 th** **day of April, two thousand fourteen.** 4 5 **PRESENT: GUIDO CALABRESI,** 6 **DENNIS JACOBS,** 7 **DEBRA ANN LIVINGSTON,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **United States of America,** 12 **Appellee ,**  13 14 **-v.- 12-4451** 15 16 **Mario Williams,** 17 **Defendant-Appellant**

**.** ***** 18
- - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** STEVEN Y. YUROWITZ, Newman & 21 Greenberg, New York, New York. 22 23

*Clerk of Court is directed to amend the caption to conform with the above.

1**FOR APPELLEES:** RAJIT S. DOSANJH, forRichard S. 1 Hartunian, United States 2 Attorney for the Northern 3 District of New York, Syracuse, 4 New York. 5 6 Appeal from a judgment of the United States District 7 Court for the Northern District of New York (McAvoy, S.J. ). 8 9 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 10 **AND DECREED**that the judgment of the district court be 11
**AFFIRMED**

. 12 13 Mario Williams (“Williams”) appeals from a judgment of 14 the United States District Court for the Northern District 15 of New York (McAvoy, S.J. ), sentencing him, following a 16 guilty plea, to 51 months’ imprisonment for conspiracy to 17 distribute and possess with intent to distribute cocaine and 18 cocaine base. On appeal, Williams argues that (1) the 19 district court erred in denying Williams’ motion to withdraw 20 his guilty plea, because the factual basis for his plea was 21 insufficient; (2) the district court erred in denying 22 Williams’ motion for appointment of new counsel in advance 23 of sentencing, because his motion for new counsel created a 24 conflict of interest that would prevent his attorney from 25 providing effective assistance at sentencing; and (3) he was 26 denied effective assistance of counsel at his sentencing. 27 We assume the parties’ familiarity with the underlying 28 facts, the procedural history, and the issues presented for 29 review. 30 31 **1.** Williams’ pro semotion to withdraw his plea did not 32 challenge the district court’s determination that there was 33 a sufficient factual basis for his plea. As a result, we 34 review this claim for plain error. United States v. Vonn

, 35 535 U.S. 55, 62-74 (2002). 36 37 Federal Rule of Criminal Procedure 11(b)(3) requires 38 that, “[b]efore entering judgment on a guilty plea, the 39 court must determine that there is a factual basis for the 40 plea.” In making this determination, the court is not 41 required “to weigh evidence to assess whether it is even 42 more likely than not that the defendant is guilty”; rather, 43 the rule “requires the court to assure itself simply that 44 the conduct to which the defendant admits is in fact an 45 offense under the statutory provision under which he is 46

2pleading guilty.” United States v. Maher , 108 F.3d 1513, 1 1524 (2d Cir. 1997). 2 3 The record of the plea hearing contradicts Williams’ 4 contention that there was “nothing to establish that [he] 5 was joining a conspiracy with the intent to possess and 6 distribute narcotics.” Williams confirmed the accuracy of 7 the government’s description of his “role in the conspiracy” 8 and “what [he] did.” Thus, Williams admitted that he 9 “conspired with Jamie Toomer and others to possess with 10 intent to distribute cocaine base, crack.” Williams fails 11 to establish any error, let alone plain error, in the 12 acceptance of his plea. 13 14 **2.** We review the denial of a motion to substitute counsel 15 for abuse of discretion. United States v. Simeonov , 252 16 F.3d 238, 241 (2d Cir. 2001). 17 18 Williams contends that his motion for appointment of 19 new counsel and, in particular, the claim in his motion that 20 his attorney “misadvised him to plead guilty,” created a 21 conflict of interest. However, it is well-settled that the 22 filing of a motion for appointment of new counsel does not, 23 in and of itself, create an actual conflict of interest 24 sufficient to justify the appointment of new counsel. See 25 United States v. Moree , 220 F.3d 65, 71 (2d Cir. 2000). 26 Accordingly, the district court committed no error of law in 27 denying the motion. 28 29 **3.** Whether a defendant’s representation “violates the 30 Sixth Amendment right to effective assistance of counsel is 31 a mixed question of law and fact that is reviewed de novo .” 32 Triana v. United States , 205 F.3d 36, 40 (2d Cir. 2000). 33 Generally, we “are reluctant to address ineffectiveness 34 claims on direct review” because “the constitutional 35 sufficiency of counsel’s performance is usually unripe for 36 seasoned retrospection until after the trial and whatever 37 appeal may follow.” United States v. Salameh , 152 F.3d 88, 38 160 (2d Cir. 1998) (per curiam ). However, we have 39 discretion to consider such claims on direct appeal where, 40 as here, the defendant is represented by new counsel on 41 appeal and the bases for his allegations of attorney 42 misconduct are “plain on the record.” United States v. 43 Davis , 239 F.3d 283, 285 (2d Cir. 2001). 44 45 In order to prevail on an ineffective assistance of 46 counsel claim, a defendant must show (1) “that counsel’s 47

3representation fell below an objective standard of 1 reasonableness,” and (2) “that there is a reasonable 2 probability that, but for counsel’s unprofessional errors, 3 the result of the proceeding would have been different.” 4 Strickland v. Washington , 466 U.S. 668, 688, 694 (1984). In 5 this analysis, “counsel is strongly presumed to have 6 rendered adequate assistance and made all significant 7 decisions in the exercise of reasonable professional 8 judgment.” Id. at 690. 9 10 Williams argues that his counsel was constitutionally 11 ineffective for failing to make a series of arguments at 12 sentencing concerning the calculation of his Guidelines 13
range. 14 15 First, Williams contends that two of his convictions 16 for unlawful possession of marijuana under New York Penal 17 Law § 221.05 should not have been counted towards his 18 criminal history score because they were merely 19 “violations,” similar to loitering. SeeU.S.S.G. § 20 4A1.2(c)(2) (sentences for “loitering” and offenses “similar 21 to” loitering are never to be counted). However, even if 22 one or both of the marijuana possession convictions cited by 23 Williams were not counted, and his total score were thus 24 reduced, he would have remained in Criminal History Category 25 III. As a result, he cannot establish a substantial 26 likelihood of a different outcome, and thus fails to show 27 prejudice. 28 29 Williams next argues that his counsel should have 30 sought a downward departure or variance on the ground that 31 his criminal history score overstated the seriousness of his 32 past criminal record. However, such an argument lacked a 33 substantial likelihood of success, given that his criminal 34 history was marked by a string of drug-related offenses-- 35 including offenses whose underlying facts indicated previous 36 involvement with drug trafficking. Cf. U.S.S.G. § 4A1.3 37 cmt. n.3 (“A downward departure . . . may be warranted if, 38 for example, the defendant had two minor misdemeanor 39 convictions close to ten years prior to the instant offense 40 and no other evidence of prior criminal behavior in the 41 intervening period.”). 42 43 Williams also contends that his counsel was 44 constitutionally ineffective for failing to seek a role 45 adjustment. To qualify for an adjustment under U.S.S.G. § 46 3B1.2(b) for being a “minimal participant” in the offense, 47

4Williams would have had to show not simply that he “played a 1 lesser role than his co-conspirators,” but that his conduct 2 was “‘minimal’ as compared to the average participant in 3 such a crime.” United States v. Rahman , 189 F.3d 88, 159 4 (2d Cir. 1999). “[T]he defendant’s lack of knowledge or 5 understanding of the scope and structure of the enterprise 6 and of the activities of others,” U.S.S.G. § 3B1.2 cmt. n.4, 7 is “essential” to a finding of minimal participation, United 8 States v. LaValley , 999 F.2d 663, 665 (2d Cir. 1993). Here, 9 however, Williams admitted to possession with intent to 10 distribute and/or distribution of 17 grams of crack cocaine 11 and 56 grams of powder cocaine and admitted to an agreement 12 to prepare crack cocaine from powder cocaine at the request 13 of a co-conspirator. These admissions strongly indicate his 14 knowledge of the “activities of others” involved in the drug 15 distribution conspiracy. 16 17 Finally, Williams contends that his counsel failed to 18 seek a lower sentence on the basis of the 18 U.S.C. § 19 3553(a) sentencing factors. The district court, however, 20 expressly considered the Section 3553(a) factors, and 21 Williams cites no factor that defense counsel should have 22 highlighted for the court. Accordingly, Williams fails to 23 establish a substantial likelihood of a different outcome. 24 25 26 For the foregoing reasons, and finding no merit in 27 Williams’ other arguments, we hereby **AFFIRM** the judgment of 28 the district court. 29 30 FOR THE COURT: 31 CATHERINE O’HAGAN WOLFE, CLERK 32 33

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