United States v. Encarnacion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1576 UNITED STATES, Appellee, v. EMILIO ENCARNACION, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge. Harry C. Batchelder, Jr., Henry H. Rossbacher, Tracy W. Young, and Rossbacher & Associates on brief for appellant. Paul M. Gagnon, United States Attorney, and Jean B. Weld, Assistant U.S. Attorney, on Motion for Summary Disposition. December 23, 1998 Per Curiam. Emilio Encarnacion appeals from the district court's denial of his motion to withdraw his guilty plea. He also seeks resentencing on the ground that the testimony provided by cooperating witnesses at his sentencing hearing was obtained in exchange for leniency granted by the government, in violation of 18 U.S.C. 201(c)(2). The government has moved for summary affirmance of appellant's conviction and sentence. We grant the motion. I. Motion to Withdraw The reason appellant has given for seeking withdrawal of his guilty plea is that he received ineffective assistance of counsel from the attorney who represented him in the months leading up to and including the time that he entered his plea. "Even prior to sentencing, defendants who maintain such a position must meet the accepted tests for ineffective assistance before being allowed to withdraw pleas on this basis." United States v. Pellerito, 878 F.2d 1535, 1537-38 (1st Cir. 1989). The district court concluded that appellant had failed to meet that test and found, instead, that appellant's attorney's competence was in the range of competence required of counsel in criminal cases and that his performance did not fall below the standard of performance of reasonably proficient counsel. Indeed, [the attorney] performed his duties as counsel well under the difficult circumstances created by an uncooperative and manipulative client. District Court Order, February 26, 1998, Docket No. 99. -2- We review the district court's determination under an abuse of discretion standard. See United States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996). "The trial court's subsidiary factfinding in connection with plea-withdrawal motions can be set aside only for clear error. As in kindred contexts, '[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.'" Pellerito, 878 F.2d at 1538 (citation omitted). We have carefully reviewed the entire record, including the transcripts of the guilty plea hearing and the hearing on appellant's motion to withdraw his guilty plea. Our review persuades us that the district court's findings were not clearly erroneous. Nor did the district court abuse its discretion in rejecting, on the basis of those findings, appellant's motion to withdraw his guilty plea. The denial of that motion is affirmed. II. Resentencing Request Appellant argues that he should be resentenced because the testimony of the witnesses at his sentencing hearing "was obtained through lenient treatment by the government" in violation of 18 U.S.C. 201. Appellant's Brief, p. 24. Because this argument was not raised before the district court, we apply plain-error review. See United Statesv. Bradstreet, 135 F.3d 46, 50 (1st Cir.), cert. denied, 118 S.Ct. 1805 (1998); Fed.R.Crim.P. 52(b). "To be correctable under Rule 52(b), an error or defect raised for the first time on appeal must be 'plain,' meaning 'clear' or 'obvious,' at the time of appellate consideration [among other requirements]." Id. (citations omitted). The alleged error does not meet that standard. In support of his argument, appellant relies on a decision by the Tenth Circuit which has been vacated and rehearing en banc granted. See United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rehearing en banc granted, opinion vacated (July 10, 1998). Other courts addressing similar challenges have rejected the reasoning of the Singletondecision. See United States v. Juncal, 1998 WL 525800 (S.D.N.Y.); United States v. Arana, et al., 1998 WL 420673 (E.D.Mich.); United States v. Guillaume, 1998 WL 462199 (S.D. Fla.). Under these circumstances, the error (if any) is not "plain." Appellant's request for resentencing is denied. The government's motion for summary disposition is granted. See Loc. R. 27.1.