12-1520-cr
United States v. Biear
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.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 11th day of March, two thousand fourteen.
Present: ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
Circuit Judge,
JED S. RAKOFF,
District Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 12-1520
JAMES S. BIEAR,
Defendant-Appellant.
________________________________________________
For Appellee: LISA P. KOROLOGOS, Assistant U.S. Attorney (Jennifer G.
Rodgers, Assistant U.S. Attorney, on the brief), for Preet
Bharara, U.S. Attorney for the Southern District of New York,
New York, NY.
*
The Honorable Jed S. Rakoff, United States District Judge for the Southern District of
New York, sitting by designation.
For Defendant-Appellant: LAWRENCE D. GERZOG, Law Offices of Lawrence D. Gerzog,
New York, NY.
Appeal from the United States District Court for the Southern District of New York
(Castel, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
and DECREED that the judgment of the district court be and hereby is AFFIRMED, and that
defendant-appellant’s claim of ineffective assistance of counsel is DISMISSED without
prejudice.
Defendant-Appellant James S. Biear appeals from a judgment of conviction and sentence
imposed on March 29, 2013, by the United States District Court for the Southern District of New
York (Castel, J.). Biear was charged with one count of interstate transportation of stolen property
under 18 U.S.C. § 2314; one count of wire fraud under 18 U.S.C. § 1343; one count of bank
fraud under 18 U.S.C. § 1344; one count of mail fraud under 18 U.S.C. § 1341; one count of
access device fraud under 18 U.S.C. § 1029(a)(5); and five counts of money laundering under 18
U.S.C. § 1957. He was convicted on all counts after a jury trial, and was sentenced primarily to
ten years’ imprisonment. He now appeals his conviction on each count and also his sentence. We
assume the parties’ familiarity with the underlying facts, procedural history, and issues on
appeal.
First, Biear challenges the sufficiency of the evidence as to each count on which he was
convicted. “We review de novo challenges to the sufficiency of the evidence.” United States v.
Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010). In deciding whether the evidence was sufficient to
sustain a conviction, “we view the evidence in the light most favorable to the government,
drawing all inferences in the government’s favor and deferring to the jury’s assessments of the
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witnesses’ credibility.” Id. (quoting United States v. Parkes, 497 F.3d 220, 225 (2d Cir. 2007)).
We will uphold the verdict as long as “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979).
Here, after a careful review of the record, we are convinced that the jury’s guilty verdict
was supported by sufficient evidence on each count. We therefore affirm Biear’s conviction on
all ten counts.
Second, Biear argues that his sentence was procedurally unreasonable. We examine the
procedural reasonableness of a district court’s sentence for abuse of discretion, examining
questions of law de novo and questions of fact for clear error. Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). A sentence is procedurally
unreasonable if the district court committed a “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51.
Biear asserts that his sentence was procedurally unreasonable because the court reporter
failed to transcribe his statement to the court at sentencing. Although we do not condone the
failure to transcribe Biear’s statement, we reject Biear’s argument because he has not shown any
specific prejudice from this gap in the record. See United States v. Weisser, 417 F.3d 336, 342-
43 (2d Cir. 2005); United States v. Smart, 448 F.2d 931, 936 (2d Cir. 1971); United States v. Di
Canio, 245 F.2d 713, 715 (2d Cir. 1957). We add that in the interests of justice, we obtained and
examined Biear’s handwritten draft of his sentencing statement, and it does not change our
analysis. See United States v. Molina, 356 F.3d 269, 275 (2d Cir. 2004). We also reject Biear’s
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argument that the district court abused its discretion by applying the Sentencing Guidelines
enhancements for abuse of a position of trust and for a vulnerable victim, as ample evidence
supported the district court’s decision to apply these enhancements. See U.S.S.G.
§§ 3A1.1(b)(1), 3B1.3.
Although Biear is represented by counsel on this appeal, he has also filed a pro se brief.
That brief argues that the government violated Biear’s rights under Brady v. Maryland, 373 U.S.
83 (1963), by failing to timely disclose exculpatory evidence; that the district court erred in an
evidentiary ruling; and that Biear’s counsel gave him ineffective assistance in connection with a
pretrial plea offer. We reject Biear’s Brady claim and his challenge to the district court’s
evidentiary ruling as meritless. As for his ineffective assistance claim, we dismiss it without
prejudice to his ability to raise it in a future petition under 28 U.S.C. § 2255. See Massaro v.
United States, 538 U.S. 500, 504 (2003) (“[I]n most cases a motion brought under § 2255 is
preferable to direct appeal for deciding claims of ineffective assistance.”); United States v.
Tarbell, 728 F.3d 122, 128-29 (2d Cir. 2013) (citing Massaro).
We have considered Biear’s remaining arguments and find that they lack merit. For the
reasons given above, we AFFIRM the district court’s judgment, and DISMISS Biear’s
ineffective assistance claim without prejudice.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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