1

12

- 2388

- cr United States v. Darling

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 governe d 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, i n the City of New York, on the 14 th day of May , two thousand thirteen.

PRESENT:

J OSÉ A. C ABRANES

, B ARRINGTON D. P

ARKER

, R AYMOND J. L OHIER

, J R
.,

Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x U NITED S TATES OF A MERICA

,

Appellee

,

- v.

- No. 12

- 2388

- cr

K EITH D ARLING

,

Defendant

- Appellant,

D AMIAN Y

OUNG

,

Defendant

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

FOR DEFENDANT

- APPELLANT: Ryan Thomas Truskoski

, Ryan Thomas Truskoski, P.A., Harwinton

, CT

.

FOR APPELLEE: Jessica Masella

, Brent S. Wible

, Assistant

United States Attorneys

, for Preet Bharara

,2 United States Attorney, Unite d States

Attorne y’s Office for the Southern District of

New York , New York, NY

.

Appeal from the June 7, 2012 judgment of conviction of the United States District Court

for the Southern District of New York ( Paul A. Crotty

, Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the June 7, 2 01 2 judgment of the District Court be AFFIRMED

.

On July 2 3 , 2011, Defendant Keith Darling ple a d ed guilty to (1) conspiracy to commit
Hobbs Act robbery

, in violation of 18 U.S.C. § 1951; 1 (2) a ttempt to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951; (3) possession o f a firearm in relation to robbery conspiracy, in
violation of 18 U.S.C. § 924(c)(1)(A); and (4) felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)

. Pr

ior to his guilty plea, the District Court denied Darling’s motion to suppress
physical evidence and statements taken during and after his arrest. Darling did not preserve his right
to appeal this decision. Nonetheless, Darling now argues that (1) we sho uld consider an appeal on
the merits of the denial of his motion to suppress because his trial counsel was constitutionally
ineffective; and (2) we should reverse the District Court’s denial of his suppression motion on the

merits

. W e assume familiarity with the underlying facts and procedural history of this case.

BACKGROUND

This case arises out of the New York City Police Department’s successful efforts to thwart a
violent drug robbery before it occurred. At some point before Ap ril 30, 2010, the day the robbery
was to transpire, a particularly reliable and well

- informed source warned the police of a plot to rob a
drug dealer in the Bronx. Not only did the informant explain precisely how the robbery would
transpire and identify a ccurately the perpetrators, but on the day of the robbery, he discussed the
plan with one of the suspects on speaker phone while the police listened. Relying on specific

information learned from the info rmant, the police approached two suspects as soon as the latter
parked their vehicle near the scene of the planned crime. The police then frisked one of the
suspects and discovered a firearm. The other suspect, who turned out to be Darling, attempted to
flee, but was subdued. Thereafter, the police found another firearm in the suspects’ vehicle. The
police issued Miranda warnings, after which the suspects both confessed to planning to rob a
marijuana dealer in the Bronx. Subsequently, Darling and his co

- defendant moved to suppress all

1 Hobbs Act robbery “ mean s the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. ” 18 U.S.C. § 1951(b)(1).3

evidence found at the scene as well as their confessions. That motion was denied. Presumably on
account of the strength of the evidence against him , Darling then entered an unconditional plea of
guilty

.

DISCUSSION

“[I] n order to reserve an issue for appeal after a gui lty plea, a defendant must obtain the
approval of the court and the consent of the government, and he must reserve the right to appeal in
writing. ” United States v. Coffin , 76 F.3d 494, 497 (2d Cir. 1996) (relying on Fed. R. Crim. P. 11(a)(2)); 2

cf. Unite d States v. Muhammad , 463 F.3d 116, 120

- 21 (2d Cir. 2006) (noting that the defendant
specifically reserved his right, pursuant to Fed. R. Crim. P. 11(a)(2), to appeal the denial of his
suppression motion). Darling contends that we should ignore his uncond itional plea and proceed to
review the denial of his suppression motion on the merits because his trial counsel provided
ineffective assistance by failing to seek a conditional plea. 3

We have explained that “[w] hen faced with a claim for ineffective assis tance of counsel on
direct appeal, we may: (1) decline to hear the claim, 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 ne cessary factfinding; or (3) decide the claim on the record before us. ”

United States v. Ramos , 677 F.3d 124, 129 (2d Cir. 2012) (quotation marks omitted). Although the
Supreme Court has indicated that “ in most cases a motion brought under § 2255 is prefe rable to
direct appeal for deciding claims of ineffective assistance ,” Massaro v. United States , 538 U.S. 500 , 504
(2003), “[w] he n the resolution of the claims is beyond any doubt or to do so would be in the interes t of justice, we may choose to entertain these claims on direct appeal ,” United States v. Hasan , 586 F.3d
161, 170 (2d Cir. 2009) (internal quotation marks omitted).

In this case, it is beyond any doubt that Darling’s attorney did not provide ineffective

assistance. In order to prevail on an in effective assistance of counsel claim, Darling must

de monstrate both that his counsel’ s performance was unreasonably deficient under prevailing
professional stan dards and that, but for his counsel’ s unprofessional errors, there exists a reasonable
probabil ity that the result below would have been different. See Strickland v. Washington , 466 U.S. 668,

687, 694 (1984).

2 Federal Rule of Criminal Procedure 11(a)(2) provides: “ With the conse nt of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. ”

3 As Darling makes clear, he “is not requesting this Court to set aside his plea of guilty (because his sentence was below the guidelines range).” Appellant’s Br. 13. In other words, Darling would like us to convert his unconditional plea to a conditional plea, so that he may enj oy the advantages of his unconditional plea while retaining the benefits he agreed to sacrifice.4

Substantially for the reasons clearly and ably stated by the experienced District Judge

, see Darling App’x 56

- 59, Darling’s claim that the police did not have reasonable suspicion to stop his
vehicle and pat him down

, or probable cause to arrest him and search his vehicle

, is so patently
meritless that we are skeptical that his trial counsel was in any way deficient in not pursuing a

conditi onal plea

, and we are fully satisfied that Darling was not prejudiced by his counsel’s decision

. In other words, “f

ailure to make a meritless argument does not amount to ineffective assistance .”
United States v. Regalado , 518 F.3d 143, 149 n.3 (2d Cir. 2 008) (quotation marks and alteration
omitted). Accordingly, we see no reason to rescue Darling from his unconditional plea, which, as he

well points out, resul ted in a below

- Guidelines range sentence. See note 3

, ante

.

CONCLUSION

We have revi ewed the r ecord and the parties’ arguments on appeal. For the reasons set out

above, we AFFIRM the June 7, 2012 judgment of the District Court.

FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court