1 10-0677 United States v. Delgiudice



### 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 20 th** **day of October, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **JON O. NEWMAN,** 8 **GERARD E. LYNCH,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **UNITED STATES OF AMERICA,** 13 **Appellee ,**  14 15 **-v.- 10-0677** 16 17 **RICHARD DELGIUDICE,** 18 **Defendant-Appellant**

**.** 19 - - - - - - - - - - - - - - - - - - - -X 20 21 **FOR APPELLANT:** Laurie S. Hershey, Manhasset, 22 New York. 23 24 **FOR APPELLEES:** Michael D. Maimin, Katherine 25 Polk Failla, Assistant United 26 State Attorneys forPreet 27 Bharara, United States Attorney 28 for the Southern District of New 29 York, New York, New York. 302 Appeal from a judgment of the United States District 1 Court for the Southern District of New York (Daniels, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4 **AND DECREED**that the judgment of the district court be 5
**AFFIRMED**

. 6 7 Richard Delgiudice appeals from a judgment of 8 conviction, following a guilty plea to one count of 9 conspiracy to distribute and possess with intent to 10 distribute one kilogram or more of heroin

. We assume the 11 parties’ familiarity with the underlying facts, the 12 procedural history, and the issues presented for review. 13 14 Delgiudice argues that the district court violated 15 Federal Rule of Criminal Procedure 11 and that the 16 forfeiture amount is without evidentiary basis. Delgiudice 17 brought neither objection to the attention of the district 18 court and therefore must show plain error. See United 19 States v. Vonn , 535 U.S. 55 (2002) (discussing Rule 11 20 error); United States v. Uddin , 551 F.3d 176, 181 (2d Cir. 21 2009) (discussing forfeiture). He does not. 22 23 **[1]** Delgiudice argues that the district court violated 24 Rule 11(b)(3) by accepting his plea without a factual basis. 25 To comply with the Rule, the court must “‘assure itself 26 simply that the conduct to which the defendant admits is in 27 fact an offense under the statutory provision under which he 28 is pleading guilty.’” United States v. Garcia , 587 F.3d 29 509, 514 (2d Cir. 2009) (quoting United States v. Maher , 108 30 F.3d 1513, 1524 (2d Cir. 1997)). “The court may rely on 31 defendant's own admissions, information from the government, 32 or other information appropriate to the specific case.” 33 United States v Andrades , 169 F.3d 131, 136 (2d Cir. 1999). 34 35 Delgiudice pled guilty to one count of conspiracy to 36 distribute and possess with intent to distribute one 37 kilogram or more of heroin. The elements of such a 38 conspiracy are “the existence of a conspiracy[,] the 39 defendant’s willful joining it,” United States v. Story
, 40 891 F.2d 988, 992 (2d Cir. 1989), and the quantity of 41 narcotics involved, United States v. Gonzalez , 420 F.3d 111, 42 129 (2d Cir. 2005). There must be at least one person in 43 the conspiracy (apart from the defendant) not acting as an 44 agent for the government. United States v. Goldberg , 756 45 F.2d 949, 958 (2d Cir. 1985). 46 473 Notwithstanding initial confusion in Delgiudice’s 1 allocution as to the date of the conspiracy, the parties 2 provided facts sufficient to substantiate each element of 3 the offense. Delgiudice admitted to entering an agreement 4 with others in July of 2005 to purchase and distribute two 5 kilograms of heroin. Defense counsel clarified that the 6 transaction to which Delgiudice was pleading guilty actually 7 occurred in June of 2005. As the prosecutor explained, 8 Delgiudice’s co-conspirator was acting as a government agent 9 in July but not in June. Delgiudice then admitted to 10 arranging to purchase and distribute one kilogram of heroin 11 in June. Given these statements, there is no plain error. 12 13 **[2]** Based on the street-value of two kilograms of 14 heroin, the court ordered Delgiudice to pay $96,000 in 15 forfeiture. Delgiudice asserts that there was only 16 evidentiary basis for his having possessed and distributed 17 one kilogram of heroin. 18 19 Delgiudice waived this argument. “[W]aiver is the 20 ‘intentional relinquishment or abandonment of a known 21 right.’” United States v. Olano , 507 U.S. 725, 733 (1993) 22 (internal citations omitted); seealsoUnited States v. 23 Polouizzi , 564 F.3d 142, 153 (2d Cir. 2009) (finding that 24 the defendant waived his right to appeal when the court 25 presented the defendant with a proposed jury instruction and 26 the defendant agreed that it was satisfactory). When the 27 court indicated that it would order forfeiture of $96,000, 28 defense counsel was told, “[i]f you think that there is 29 something that might demonstrate that I have some authority 30 or basis to order something different, I’ll give you that 31 opportunity.” After conferring with Delgiudice, counsel 32 replied, “[y]our honor, we will accept your judgment on it.” 33 34 Finding no merit in Delgiudice’s remaining arguments, 35 we hereby **AFFIRM** the judgment of the district court. 36 37 FOR THE COURT: 38 CATHERINE O’HAGAN WOLFE, CLERK 39 40