12-4451

United States v. Williams, et al.

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 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 29th 4 day of April, two thousand fourteen.

5

6 PRESENT: GUIDO CALABRESI,

7 DENNIS JACOBS,

8 DEBRA ANN LIVINGSTON,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 United States of America, 

13 Appellee,

14

15 -v.- 12-4451

16

17 Mario Williams, 

Defendant-Appellant.* 18

19 - - - - - - - - - - - - - - - - - - - -X

20

21 FOR APPELLANT: STEVEN Y. YUROWITZ, Newman &

22 Greenberg, New York, New York.

23

* Clerk of Court is directed to amend the caption to

conform with the above.

1
1 FOR APPELLEES: RAJIT S. DOSANJH, for Richard S.

2 Hartunian, United States

3 Attorney for the Northern

4 District of New York, Syracuse,

5 New York.

6

7 Appeal from a judgment of the United States District

8 Court for the Northern District of New York (McAvoy, S.J.).

9

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11 AND DECREED that the judgment of the district court be

12 AFFIRMED. 

13

14 Mario Williams (“Williams”) appeals from a judgment of

15 the United States District Court for the Northern District

16 of New York (McAvoy, S.J.), sentencing him, following a

17 guilty plea, to 51 months’ imprisonment for conspiracy to

18 distribute and possess with intent to distribute cocaine and

19 cocaine base. On appeal, Williams argues that (1) the

20 district court erred in denying Williams’ motion to withdraw

21 his guilty plea, because the factual basis for his plea was

22 insufficient; (2) the district court erred in denying

23 Williams’ motion for appointment of new counsel in advance

24 of sentencing, because his motion for new counsel created a

25 conflict of interest that would prevent his attorney from

26 providing effective assistance at sentencing; and (3) he was

27 denied effective assistance of counsel at his sentencing. 

28 We assume the parties’ familiarity with the underlying

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

30 review. 

31

32 1. Williams’ pro se motion to withdraw his plea did not

33 challenge the district court’s determination that there was

34 a sufficient factual basis for his plea. As a result, we

35 review this claim for plain error. United States v. Vonn,

36 535 U.S. 55, 62-74 (2002). 

37

38 Federal Rule of Criminal Procedure 11(b)(3) requires

39 that, “[b]efore entering judgment on a guilty plea, the

40 court must determine that there is a factual basis for the

41 plea.” In making this determination, the court is not

42 required “to weigh evidence to assess whether it is even

43 more likely than not that the defendant is guilty”; rather,

44 the rule “requires the court to assure itself simply that

45 the conduct to which the defendant admits is in fact an

46 offense under the statutory provision under which he is

2
1 pleading guilty.” United States v. Maher, 108 F.3d 1513,

2 1524 (2d Cir. 1997). 

3

4 The record of the plea hearing contradicts Williams’

5 contention that there was “nothing to establish that [he]

6 was joining a conspiracy with the intent to possess and

7 distribute narcotics.” Williams confirmed the accuracy of

8 the government’s description of his “role in the conspiracy”

9 and “what [he] did.” Thus, Williams admitted that he

10 “conspired with Jamie Toomer and others to possess with

11 intent to distribute cocaine base, crack.” Williams fails

12 to establish any error, let alone plain error, in the

13 acceptance of his plea. 

14

15 2. We review the denial of a motion to substitute counsel

16 for abuse of discretion. United States v. Simeonov, 252

17 F.3d 238, 241 (2d Cir. 2001). 

18 

19 Williams contends that his motion for appointment of

20 new counsel and, in particular, the claim in his motion that

21 his attorney “misadvised him to plead guilty,” created a

22 conflict of interest. However, it is well-settled that the

23 filing of a motion for appointment of new counsel does not,

24 in and of itself, create an actual conflict of interest

25 sufficient to justify the appointment of new counsel. See

26 United States v. Moree, 220 F.3d 65, 71 (2d Cir. 2000). 

27 Accordingly, the district court committed no error of law in

28 denying the motion.

29

30 3. Whether a defendant’s representation “violates the

31 Sixth Amendment right to effective assistance of counsel is

32 a mixed question of law and fact that is reviewed de novo.” 

33 Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000). 

34 Generally, we “are reluctant to address ineffectiveness

35 claims on direct review” because “the constitutional

36 sufficiency of counsel’s performance is usually unripe for

37 seasoned retrospection until after the trial and whatever

38 appeal may follow.” United States v. Salameh, 152 F.3d 88,

39 160 (2d Cir. 1998) (per curiam). However, we have

40 discretion to consider such claims on direct appeal where,

41 as here, the defendant is represented by new counsel on

42 appeal and the bases for his allegations of attorney

43 misconduct are “plain on the record.” United States v.

44 Davis, 239 F.3d 283, 285 (2d Cir. 2001).

45

46 In order to prevail on an ineffective assistance of

47 counsel claim, a defendant must show (1) “that counsel’s

3
1 representation fell below an objective standard of

2 reasonableness,” and (2) “that there is a reasonable

3 probability that, but for counsel’s unprofessional errors,

4 the result of the proceeding would have been different.”

5 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In

6 this analysis, “counsel is strongly presumed to have

7 rendered adequate assistance and made all significant

8 decisions in the exercise of reasonable professional

9 judgment.” Id. at 690. 

10

11 Williams argues that his counsel was constitutionally

12 ineffective for failing to make a series of arguments at

13 sentencing concerning the calculation of his Guidelines

14 range. 

15

16 First, Williams contends that two of his convictions

17 for unlawful possession of marijuana under New York Penal

18 Law § 221.05 should not have been counted towards his

19 criminal history score because they were merely

20 “violations,” similar to loitering. See U.S.S.G. §

21 4A1.2(c)(2) (sentences for “loitering” and offenses “similar

22 to” loitering are never to be counted). However, even if

23 one or both of the marijuana possession convictions cited by

24 Williams were not counted, and his total score were thus

25 reduced, he would have remained in Criminal History Category

26 III. As a result, he cannot establish a substantial

27 likelihood of a different outcome, and thus fails to show

28 prejudice. 

29

30 Williams next argues that his counsel should have

31 sought a downward departure or variance on the ground that

32 his criminal history score overstated the seriousness of his

33 past criminal record. However, such an argument lacked a

34 substantial likelihood of success, given that his criminal

35 history was marked by a string of drug-related offenses--

36 including offenses whose underlying facts indicated previous

37 involvement with drug trafficking. Cf. U.S.S.G. § 4A1.3

38 cmt. n.3 (“A downward departure . . . may be warranted if,

39 for example, the defendant had two minor misdemeanor

40 convictions close to ten years prior to the instant offense

41 and no other evidence of prior criminal behavior in the

42 intervening period.”).

43

44 Williams also contends that his counsel was

45 constitutionally ineffective for failing to seek a role

46 adjustment. To qualify for an adjustment under U.S.S.G. §

47 3B1.2(b) for being a “minimal participant” in the offense,

4
1 Williams would have had to show not simply that he “played a

2 lesser role than his co-conspirators,” but that his conduct

3 was “‘minimal’ as compared to the average participant in

4 such a crime.” United States v. Rahman, 189 F.3d 88, 159

5 (2d Cir. 1999). “[T]he defendant’s lack of knowledge or

6 understanding of the scope and structure of the enterprise

7 and of the activities of others,” U.S.S.G. § 3B1.2 cmt. n.4,

8 is “essential” to a finding of minimal participation, United

9 States v. LaValley, 999 F.2d 663, 665 (2d Cir. 1993). Here,

10 however, Williams admitted to possession with intent to

11 distribute and/or distribution of 17 grams of crack cocaine

12 and 56 grams of powder cocaine and admitted to an agreement

13 to prepare crack cocaine from powder cocaine at the request

14 of a co-conspirator. These admissions strongly indicate his

15 knowledge of the “activities of others” involved in the drug

16 distribution conspiracy. 

17

18 Finally, Williams contends that his counsel failed to

19 seek a lower sentence on the basis of the 18 U.S.C. §

20 3553(a) sentencing factors. The district court, however,

21 expressly considered the Section 3553(a) factors, and

22 Williams cites no factor that defense counsel should have

23 highlighted for the court. Accordingly, Williams fails to

24 establish a substantial likelihood of a different outcome. 

25

26

27 For the foregoing reasons, and finding no merit in

28 Williams’ other arguments, we hereby AFFIRM the judgment of

29 the district court.

30

31 FOR THE COURT:

32 CATHERINE O’HAGAN WOLFE, CLERK

33

5