12-4451
United States v. Williams, et al.
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of April, two thousand fourteen.
5
6 PRESENT: GUIDO CALABRESI,
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 United States of America,
13 Appellee,
14
15 -v.- 12-4451
16
17 Mario Williams,
18 Defendant-Appellant.*
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: STEVEN Y. YUROWITZ, Newman &
22 Greenberg, New York, New York.
23
*
Clerk of Court is directed to amend the caption to
conform with the above.
1
1 FOR APPELLEES: RAJIT S. DOSANJH, for Richard S.
2 Hartunian, United States
3 Attorney for the Northern
4 District of New York, Syracuse,
5 New York.
6
7 Appeal from a judgment of the United States District
8 Court for the Northern District of New York (McAvoy, S.J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 Mario Williams (“Williams”) appeals from a judgment of
15 the United States District Court for the Northern District
16 of New York (McAvoy, S.J.), sentencing him, following a
17 guilty plea, to 51 months’ imprisonment for conspiracy to
18 distribute and possess with intent to distribute cocaine and
19 cocaine base. On appeal, Williams argues that (1) the
20 district court erred in denying Williams’ motion to withdraw
21 his guilty plea, because the factual basis for his plea was
22 insufficient; (2) the district court erred in denying
23 Williams’ motion for appointment of new counsel in advance
24 of sentencing, because his motion for new counsel created a
25 conflict of interest that would prevent his attorney from
26 providing effective assistance at sentencing; and (3) he was
27 denied effective assistance of counsel at his sentencing.
28 We assume the parties’ familiarity with the underlying
29 facts, the procedural history, and the issues presented for
30 review.
31
32 1. Williams’ pro se motion to withdraw his plea did not
33 challenge the district court’s determination that there was
34 a sufficient factual basis for his plea. As a result, we
35 review this claim for plain error. United States v. Vonn,
36 535 U.S. 55, 62-74 (2002).
37
38 Federal Rule of Criminal Procedure 11(b)(3) requires
39 that, “[b]efore entering judgment on a guilty plea, the
40 court must determine that there is a factual basis for the
41 plea.” In making this determination, the court is not
42 required “to weigh evidence to assess whether it is even
43 more likely than not that the defendant is guilty”; rather,
44 the rule “requires the court to assure itself simply that
45 the conduct to which the defendant admits is in fact an
46 offense under the statutory provision under which he is
2
1 pleading guilty.” United States v. Maher, 108 F.3d 1513,
2 1524 (2d Cir. 1997).
3
4 The record of the plea hearing contradicts Williams’
5 contention that there was “nothing to establish that [he]
6 was joining a conspiracy with the intent to possess and
7 distribute narcotics.” Williams confirmed the accuracy of
8 the government’s description of his “role in the conspiracy”
9 and “what [he] did.” Thus, Williams admitted that he
10 “conspired with Jamie Toomer and others to possess with
11 intent to distribute cocaine base, crack.” Williams fails
12 to establish any error, let alone plain error, in the
13 acceptance of his plea.
14
15 2. We review the denial of a motion to substitute counsel
16 for abuse of discretion. United States v. Simeonov, 252
17 F.3d 238, 241 (2d Cir. 2001).
18
19 Williams contends that his motion for appointment of
20 new counsel and, in particular, the claim in his motion that
21 his attorney “misadvised him to plead guilty,” created a
22 conflict of interest. However, it is well-settled that the
23 filing of a motion for appointment of new counsel does not,
24 in and of itself, create an actual conflict of interest
25 sufficient to justify the appointment of new counsel. See
26 United States v. Moree, 220 F.3d 65, 71 (2d Cir. 2000).
27 Accordingly, the district court committed no error of law in
28 denying the motion.
29
30 3. Whether a defendant’s representation “violates the
31 Sixth Amendment right to effective assistance of counsel is
32 a mixed question of law and fact that is reviewed de novo.”
33 Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).
34 Generally, we “are reluctant to address ineffectiveness
35 claims on direct review” because “the constitutional
36 sufficiency of counsel’s performance is usually unripe for
37 seasoned retrospection until after the trial and whatever
38 appeal may follow.” United States v. Salameh, 152 F.3d 88,
39 160 (2d Cir. 1998) (per curiam). However, we have
40 discretion to consider such claims on direct appeal where,
41 as here, the defendant is represented by new counsel on
42 appeal and the bases for his allegations of attorney
43 misconduct are “plain on the record.” United States v.
44 Davis, 239 F.3d 283, 285 (2d Cir. 2001).
45
46 In order to prevail on an ineffective assistance of
47 counsel claim, a defendant must show (1) “that counsel’s
3
1 representation fell below an objective standard of
2 reasonableness,” and (2) “that there is a reasonable
3 probability that, but for counsel’s unprofessional errors,
4 the result of the proceeding would have been different.”
5 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In
6 this analysis, “counsel is strongly presumed to have
7 rendered adequate assistance and made all significant
8 decisions in the exercise of reasonable professional
9 judgment.” Id. at 690.
10
11 Williams argues that his counsel was constitutionally
12 ineffective for failing to make a series of arguments at
13 sentencing concerning the calculation of his Guidelines
14 range.
15
16 First, Williams contends that two of his convictions
17 for unlawful possession of marijuana under New York Penal
18 Law § 221.05 should not have been counted towards his
19 criminal history score because they were merely
20 “violations,” similar to loitering. See U.S.S.G. §
21 4A1.2(c)(2) (sentences for “loitering” and offenses “similar
22 to” loitering are never to be counted). However, even if
23 one or both of the marijuana possession convictions cited by
24 Williams were not counted, and his total score were thus
25 reduced, he would have remained in Criminal History Category
26 III. As a result, he cannot establish a substantial
27 likelihood of a different outcome, and thus fails to show
28 prejudice.
29
30 Williams next argues that his counsel should have
31 sought a downward departure or variance on the ground that
32 his criminal history score overstated the seriousness of his
33 past criminal record. However, such an argument lacked a
34 substantial likelihood of success, given that his criminal
35 history was marked by a string of drug-related offenses--
36 including offenses whose underlying facts indicated previous
37 involvement with drug trafficking. Cf. U.S.S.G. § 4A1.3
38 cmt. n.3 (“A downward departure . . . may be warranted if,
39 for example, the defendant had two minor misdemeanor
40 convictions close to ten years prior to the instant offense
41 and no other evidence of prior criminal behavior in the
42 intervening period.”).
43
44 Williams also contends that his counsel was
45 constitutionally ineffective for failing to seek a role
46 adjustment. To qualify for an adjustment under U.S.S.G. §
47 3B1.2(b) for being a “minimal participant” in the offense,
4
1 Williams would have had to show not simply that he “played a
2 lesser role than his co-conspirators,” but that his conduct
3 was “‘minimal’ as compared to the average participant in
4 such a crime.” United States v. Rahman, 189 F.3d 88, 159
5 (2d Cir. 1999). “[T]he defendant’s lack of knowledge or
6 understanding of the scope and structure of the enterprise
7 and of the activities of others,” U.S.S.G. § 3B1.2 cmt. n.4,
8 is “essential” to a finding of minimal participation, United
9 States v. LaValley, 999 F.2d 663, 665 (2d Cir. 1993). Here,
10 however, Williams admitted to possession with intent to
11 distribute and/or distribution of 17 grams of crack cocaine
12 and 56 grams of powder cocaine and admitted to an agreement
13 to prepare crack cocaine from powder cocaine at the request
14 of a co-conspirator. These admissions strongly indicate his
15 knowledge of the “activities of others” involved in the drug
16 distribution conspiracy.
17
18 Finally, Williams contends that his counsel failed to
19 seek a lower sentence on the basis of the 18 U.S.C. §
20 3553(a) sentencing factors. The district court, however,
21 expressly considered the Section 3553(a) factors, and
22 Williams cites no factor that defense counsel should have
23 highlighted for the court. Accordingly, Williams fails to
24 establish a substantial likelihood of a different outcome.
25
26
27 For the foregoing reasons, and finding no merit in
28 Williams’ other arguments, we hereby AFFIRM the judgment of
29 the district court.
30
31 FOR THE COURT:
32 CATHERINE O’HAGAN WOLFE, CLERK
33
5