13-146-cr United States v. David Adams

UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT

__________ ___________ August Term, 2013 (Argued: April 25, 2014 Decided: September 25, 2014)
Docket No. 13-146-cr

__________ ___________ U NITED S TATES OF A MERICA , Appellee , D ENNIS M CCADE , T RENTON G ARY , also known as Tito, B RIAN E VINS , D ENTE R YAN , also known as Taz, V ERNAL H ENRY , also known as Vernal Allen, also known as The Brit, K ELLY C AMPBELL , D AVID M ONTERO , also known as Dirty, Defendants,

- v .- D AVID A DAMS , Defendant-Appellant

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_____________ __________ Before: W ALKER , H ALL , Circuit Judges , and M URTHA , District Judge

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_____________ __________ On appeal from a judgment of the United States District Court for the Southern District of New York (Griesa, J .) following a plea of guilty convi cting Appellant of one count of conspiracy to distribute and possess with intent to distribute 1,000 kilograms and more of marijuana, Appellant asserts that his plea of guilty was invalid because the court did not inquire about the effect of his heart conditio n and the medications he was taking on his ability knowingly and voluntarily to enter a guilty plea. Notwithstanding that a two-year period elapsed between when defendant chan ged his plea and when he was sentenced,

 The Honorable J. Garvan Murtha, of the Unit ed States District Cour t for the District of Vermont, sitting by designation.2 defendant raised no objection to the validity of his plea either during that period or at the time of sentencing, and Appellant has introd uced no evidence to dem onstrate that but for the trial court not inquiring about the eff ect of his heart condition and the related medications on his ability know ingly and voluntarily to ente r a plea, he would not have entered a guilty plea. On review for plain e rror, we AFFIRM the judgment of conviction.

__________ ____________ J ANIS M. E CHENBERG (B RENT S. W IBLE , on the brief ), for P REET B HARARA , United States Attorney for the Southe rn District of New York, New York, NY, for Appellee

. J ULIA P. H EIT , E SQ ., New York, NY, for Defendant-Appellant.

_____________ __________ P ER C URIAM : Defendant-Appellant David Adams (“Defe ndant” or “Adams”) appeals from a judgment of conviction entered after his plea of guilty on December 7, 2012, in the United
States District Court for the Southe rn District of New York (Griesa, J. ), convicting him of one count of conspiracy to distribute and posse ss with intent to distribute at least 1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court sentenced Adams principally to a term of 210 months’ imprisonment, to be followed by a five-year term of supervised rele ase. Adams contends that his plea should be
vacated because the district court violated Rule 11 of the Federal Rules of Criminal
Procedure when it failed to in quire during the plea allocution about the possible impact his
heart condition and medications had on his ability to enter a knowing, intelligent, and voluntary plea. For largely the same reasons, Adams further argues that the appeal waiver in the Plea Agreement, by which he waived the right to challenge a sentence within a stipulated range, is also invalid. Finally, Adams contends that his sentence was substantively3 unreasonable, and violates the Eighth Amendment. We affirm the judgment of the district

court.
B ACKGROUND
I. Adams’s Plea In December 2009, Adams was arrested, along with three other co-defendants, for running a large-scale marijuana-trafficking oper ation. He was charge d with one count of conspiracy to distribute and possess with intent to distribute 1,000 kilograms and more of marijuana. Approximately a year later, pursuant to a plea agreement (the “Plea Agreement”), Adams pleaded guilty to the charge. In the Plea Agreement, Adams and the gove rnment (“the parties”) stipulated to an offense level of 37 under the Sentencing Guid elines and a guidelines range of 210 to 262 months’ imprisonment (the “Stipulated Guidelin es Range”). The parties agreed to seek neither “a downward nor an up ward departure from” that range. “The parties further agree[d] that a sentence within the Stipulat ed Guidelines Range would constitute a reasonable sentence in light of all the factors se t forth in” 18 U.S.C. § 3553(a), but that either party could, directly or indirectly, seek a sentence outside the stipulated range based on § 3553(a) factors. Additionally, by entering into the Plea Agreement, Adams “agreed . . . not [to] file a direct appeal . . . [of] any sent ence within or below the Stipulated Guidelines Range” and “waive[d] any and all right to withdraw his plea or attack his conviction, either on direct appeal or collaterally . . . [except on the ground that the government failed to produce in discovery] information es tablishing [his] factual innocence.”4 During the Rule 11 plea proceedings, the district court confirmed that Adams was satisfied with his attorney’s representation an d advice, had discussed the Plea Agreement “thoroughly” with his attorney, and had signed the Plea Agreement. The court further
confirmed that Adams was not “under the infl uence of any alcohol or narcotics” and had not been induced to plead guilty as a result of “any force or any threats.” The court then discussed the indictment, explained what the g overnment would have to prove at trial, and
asked Adams whether he understo od this information. Adams replied that he did. After reviewing the forfeiture allegat ion and the penalties associated with the offense charged, the court again asked Adams whether he understood “the rights [he was] giving up by pleading guilty” and also informed Adams that he did not need to plead guilty but could “maintain a plea of not guilty and go to trial.” Adams again stated that he understood. The court reminded Adams that if he pled guilty he would be convicted without a trial on the basis of his plea and his own admission. In response, Ad ams again confirmed that he understood. Finally, when asked whether he understood that there was a “stipulated guideline range of 210 to 262 months, and the Plea Agreemen t does further state that if the sentence is within that range or below it, there will be no appeal and no motion against the sentence,” Adams’s attorney attested that his client “fully under[stood] the parameters of the plea and what he signed.” Having heard counsel’s re presentation and seeking Adams’s response, the court then asked Adams, “Is that correct?” Adams responded, “Yes, it is, your Honor.”
II. Adams’s Medical Condition Eight years prior to criminal charges being brought against him here, Adams was diagnosed with congestive heart failure. In 2010, while in prison on these charges, he5 underwent surgery to implant a pacemaker. Th roughout his incarceration, on account of his heart condition, Adams sought medical care and met with doctors. A ccording to Adams, he was taking twelve medications fo r his condition at the time of his plea, some of which he asserts have potential side effects that could af fect cognitive function. Apart from his heart condition, at the time of his plea Adams al so suffered from anxiety and depression, for which he saw a psychiatrist once a month and was prescribed antidepressants. Medical personnel treating him, however, did not observ e any impact of the medications on Adams’s cognitive function. For example, in a letter da ted June 16, 2010, written prior to the plea proceedings, Dr. Webber, the Director of N on-Invasive Cardiovascular Imaging at New York Downtown Hospital, desc ribed Adams’s mental state as “[a]lert and oriented,” and noted that his “[m]ood [wa]s congruent,” and th at he did not exhibit any “focal deficits.” 1 During a visit at a chronic care clinic on July 19, 2012, several months after the plea proceedings and while on the same medications, Adams informed treating physicians that he was not suffering any side effects.
III. Adams’s Sentencing On December 7, 2012, almost two years af ter entering his plea, Adams appeared before the district court for sentencing. At the hearing, Adams argued that he should be given a below-Guidelines sentence because of hi s medical issues. While the district court
considered and credited the in formation concerning Adams’s he alth problems, it found that it could not ignore the “very serious criminal conduct . . . going on while those health conditions were persisting.” Adams was se ntenced at the lower en d of the Stipulated

1 Dr. Webber also determined that Adams had a “low risk of mo rtality and hence would [be] exclude[d] . . . from being listed fo r cardiac transplant” at that time.6 Guidelines Range to 210 months’ imprisonment, to be followed by a five-year term of supervised release. At the close of the senten cing proceedings, Adams was reminded that he had waived his right to appeal a sentence within the Stipulated Guidelines Range pursuant to the Plea Agreement. Adams, nevertheless, timely appealed.
D ISCUSSION
I. Adams’s Guilty Plea Adams’s principal contention on appeal is that the district court violated Rule 11 of
the Federal Rules of Criminal Procedure when it failed to inquire duri ng the plea allocution about the impact Adams’s heart condition an d medications had on his ability to enter a knowing, intelligent, and voluntary plea of guil ty. As Adams failed to raise any claim that
Rule 11 was violated in the co urt below, we review this clai m, asserted for the first time on appeal, for plain error. United States v. Yang Chia Tien , 720 F.3d 464, 469 (2d Cir. 2013). 2 Plain error review requires “a defe ndant to demonstrate that (1) there was error, (2) the error was plain, (3) the error prejudic ially affected his substantial rights, and (4) the error seriously affected the fairness, integrity or pub lic reputation of judi cial proceedings.” United States v. Cook , 722 F.3d 477, 481 (2d Cir. 2013) (internal quotation marks omitted). “[T]o show plain error in the context of Rule 11, ‘a defendan t must establish that the violation affected substantial rights and that there is a reasonabl e probability that, but for the error, he would not have entered the plea.’” Yang Chia Tien , 720 F.3d at 469 (quoting United States v. Garcia, 587 F.3d 509, 515 (2d Cir. 2009)).

2 Although Appellant repeatedly argued in his written submissions that the plain error standard of review was not applicable he re, even going as far as to suggest that de novo review was appropriate, he admitted on the record duri ng oral argument that plain error is the correct and only possible standard of re view to be applied in this case.7 Given the district court’s knowledge of Adam s’s medical problems, it is possible that the district judge should have asked Adams a bout his heart condition and medication at the plea hearing, and that its fa ilure to do so was error. See United States v. Lora , 895 F.2d 878, 880 (2d Cir. 1990) (“The Second Circuit has adop ted a standard of strict adherence to Rule 11.”); United States v. Rossillo , 853 F.2d 1062, 1066 (2d Cir. 1988) (“[I]f there is any indication . . . that [the] defendant is under the influence of any medication, drug or intoxicant, it is incumbent upon the district cour t to explore on the record defe ndant’s ability to understand the nature and consequences of his decision to plead guilty.”); see also Yang Chia Tien , 720 F.3d at 468–71. To satisfy the plain error st andard applicable to this case, however, the defendant must also establish “a reasonable proba bility that, but for the error, he would not have entered the plea.” Yang Chia Tien , 720 F.3d at 469 (internal quotation marks omitted). We need not conclusively resolve whether the di strict court erred in conducting the Rule 11 proceedings because Adams has made no such showing. Adams has not demonstrated any reasonabl e probability that he would not have pleaded guilty, or that the judg e would not have accepted his pl ea, if the district court had inquired about his medical condition or medica tions. His behavior following entry of his guilty plea confirms that Adams fully intended to plead guilty. Unlike other cases in which defendants have claimed soon after their plea s that their medical co nditions vitiated any conclusion that their pleas we re knowing and voluntary, Adams made no effort to have his asserted misunderstanding of the proceedings or the consequences of his plea corrected in the two years prior to sentencing or in an otherwise timely manner. Cf. Yang Chia Tien , 720 F.3d at 466–68 (defendant unsuccessfully sought to withdraw a plea within seven months of8 pleading guilty and prior to sentencing); Rossillo , 853 F.2d at 1064 (defendant unsuccessfully sought to withdraw his plea with in eleven months of pleading gu ilty and prior to sentencing). Adams neither filed nor sought to file a motion to withdraw hi s plea during the almost two years separating the plea pr oceedings and his sentencing. 3 Only when he did not receive the below-Guidelines sentence he had hoped for di d Adams assert, for the first time in this appeal, that his medications and heart conditi on may have adversely affected his ability to enter a knowing, intelligent, an d voluntary plea. On the reco rd before us, therefore, we conclude that Adams has not demonstrated pl ain error in connection with his guilty plea,
and we affirm Adam s’s conviction.
II. Adams’s Sentence Adams also contends that his 210-month term of imprisonment is “per se unreasonable” and, alternatively, that it violat es the Eighth Amendment of the United States Constitution because, given the severity of his heart condition, it repr esents a death sentence. The government argues that the appeal wa iver contained in Adams’s Plea Agreement forecloses any challenge to his sentence. Ev en assuming that the waiver is unenforceable and that we may reach the merits of Adams’s challenge, we would a ffirm the judgment of
the district court. We review sentences for procedural and substantive reasonableness under a
“deferential abuse-of-discretion standard.” Gall v. United States , 552 U.S. 38, 41 (2007). “Procedural error occurs when, for example, the district court improperly calculates the applicable Guidelines range, fails to consider the sentencing factors articulated in 18 U.S.C.

3 We note there is also evidence that Adams ma y have deliberately attempted to aggravate his medical condition in an effort to receive a below-Guidelines sentence.9 § 3553(a), or neglects to explain the reasons for its chosen sentence.” United States v. Kerr , 752 F.3d 206, 222 (2d Cir. 2014). A district court’s substantive determination as to the proper sentence will be set aside “only in excep tional cases where the trial court’s decision
‘cannot be located within the ra nge of permissible decisions.’” United States v. Cavera , 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (quoting United States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)). To the extent Adams argues that the dist rict court erred by failing to depart
downward from the 210 to 2 62-month Guideline range of in carceration on account of his illness, see U.S.S.G. § 5H1.4, that ar gument is without merit. The district court noted correctly that the Guidelines range was advisory and that the court had authority to impose a sentence below that range. Moreover, it ex pressly considered Adam s’s medical condition when deciding to impose a Guidelines sentence. See App’x at 109–11. It is evident, therefore, that the district court did not mi sapprehend its authority to depart from the Guidelines range, and its de cision not to do so is unreviewable absent such a misapprehension. See United States v. Valdez , 426 F.3d 178, 184 (2d Cir. 2005) (“[A] refusal to downwardly depart is generally not appealable” unless “a sentencing court misapprehended the scope of its authority to depart or the sentence was otherwise illegal.”); see also United
States v. Sero , 520 F.3d 187, 192 (2d Cir. 2008) (same). Adams’s attack on the substantive reasonableness of his sentence is similarly unavailing. Sentences are substantively unreas onable only if they are “so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would damage the administration of justice.” United States v. Thavaraja , 740 F.3d 253, 259 (2d10 Cir. 2014) (internal quotation marks omitted). Applying this “particularly deferential standard,” id. , we conclude that Adams’s sentence fa lls within the range of permissible decisions. In imposing the 210-month Guidelines sentence, the district court fully credited the evidence regarding Adams’s “serious health problems, including a heart condition.” App’x at 110. The court then carefully we ighed that set of factors, which it found “legitimately b[ore] on sentencing,” id. at 109, against the seriousness of Adams’s criminal conduct, which included his leadership of th e large-scale marijuana smuggling operation and his multiple attempts to obstruct justice, id. at 109–10. The court further observed that Adams had engaged in this criminal conduct “while those health co nditions were persisting.”
Id. at 110. Based on all of these considerat ions, the court concluded that a 210-month sentence—the bottom of the applicable Guidelines range—was appropriate. Id. at 111. It is beyond cavil that the district court carefully considered all of the relevant mitigating and aggravating sentencing factors, and it is not the place of the appellate court to “consider what weight we would ourselves ha ve given a particular factor.” Thavaraja , 740 F.3d at 259 (internal quotation marks omitted). Given a ll of the circumstances, we conclude that allowing Adams’s sentence to stand would not “damage the administration of justice.” Id. at 259 (internal quotation marks omitted); see also United States v. Jones , 531 F.3d 163, 178 (2d Cir. 2008) (“[I]n the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentence s that would be reasonable in the particular circumstances.” (internal quotation marks omitted)). “Lengthy prison sentences, [moreover,] even those that exceed any conceivable life expectancy of a convicted defe ndant, do not violate the Ei ghth Amendment’s prohibition11 against cruel and unusual punishment when base d on a proper applicati on of the Sentencing Guidelines or statutorily mandated consecutive terms.” United States v. Yousef , 327 F.3d 56, 163 (2d Cir. 2003). We have also recognized that , “in a noncapital case, it is exceedingly rare to uphold a claim that a senten ce within the statutory limits is disproportionately severe.” United States v. Caracappa , 614 F.3d 30, 44 (2d Cir. 2010) (internal quotation marks and emphasis omitted). Adams’s sentence, therefore, is not substantively unreasonable nor does it violate the Eighth Amendment.
III. Adams’s Motion for Hearing Adams argues that we should order a he aring to determine “whether the federal prison medical facilities can keep [him] alive for 210 months and will in fact make every effort to obtain a heart transplant.” Appellant Br . at 49. On this direct appeal from Adams’s judgment of conviction, there is no basis for us to order such a hearing. The adequacy of the federal prison medical fac ilities and the appropriateness of Adams’s treatment in those facilities are issues more appropriately raised in other settings, be it the administrative processes available within the Bu reau of Prisons or by requesting other forms of relief from
the federal courts. See, e.g. , 28 U.S.C. § 2241; 42 U.S.C. § 198 3. We do not consider and express no views as to the viability of any claims Adams may bring pursuant to those procedures.
IV. Adams’s Claim of Ineffective Assistance of Counsel Finally, to the extent that Adams attempts to advance a claim that his attorney was ineffective, we also decline to address that issu e in this appeal. “Whe n faced with a claim for ineffective assistance of counsel on direct appe al, we may: (1) decline to hear the claim,12 permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the cl aim on the record before us.” United States v. Tarbell , 728 F.3d 122, 128 (2d Cir. 2013) (interna l quotation marks omitted). Cognizant of the fact that the first option is generally preferred, see Massaro v. United States , 538 U.S. 500, 504 (2003) (“[I]n most cases a motion brought un der [28 U.S.C.] § 2255 is prefer able to direct appeal for deciding claims of ineffectiv e assistance.”), and being unable to resolve Adams’s ineffective assistance claim on the present record, we dismiss that clai m without prejudice to his advancing that claim in a collateral pr oceeding under § 2255, or otherwise.

C ONCLUSION The judgment of conviction entered by the district court is AFFIRMED

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