United States v. Crespo

15-270, 15-2157 United States v. Crespo 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 1st day of June, two thousand sixteen. 5 6 PRESENT: DENNIS JACOBS, 7 BARRINGTON D. PARKER, 8 REENA RAGGI, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 -v.- 15-270, 16 15-2157 17 DAVID J. CRESPO, 18 Defendant-Appellant. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR APPELLANT: DAVID S. KEENAN, Assistant 22 Federal Public Defender, for 23 Terence S. Ward, Federal Public 24 Defender, New Haven, CT. 25 26 FOR APPELLEE: ANTHONY E. KAPLAN (with Sandra 27 S. Glover on the brief), 28 Assistant United States 1 1 Attorneys, for Deirdre M. Daly, 2 United States Attorney for the 3 District of Connecticut. 4 5 Appeal from a judgment of the United States District 6 Court for the District of Connecticut (Burns, J.; Hall, 7 C.J.). 8 9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 10 AND DECREED that the judgment of the district court be 11 AFFIRMED. 12 13 David J. Crespo appeals from the judgment of conviction 14 and sentence of the United States District Court for the 15 District of Connecticut (Burns, J.; Hall, C.J.). We assume 16 the parties' familiarity with the underlying facts, the 17 procedural history, and the issues presented for review. 18 19 1. Crespo challenges whether there was a factual 20 basis for his plea. We ordinarily review such a challenge 21 for abuse of discretion; but when (as here) a defendant did 22 not challenge the validity of his plea before the district 23 court at the time it was entered, we review for plain error 24 only. See United States v. Garcia, 587 F.3d 509, 515 (2d 25 Cir. 2009) (citing United States v. Vonn, 535 U.S. 55, 58-59 26 (2002)). 27 28 Crespo claims that his guilty plea is invalid because 29 he did not admit to facts articulated by Government counsel 30 -- specifically, that he acted with specific intent to 31 defraud. However, the district court inquired whether 32 Crespo had violated the mail fraud statute and did so by 33 advising him of the specific elements of the offense, 34 including “knowingly and willfully participat[ing] in the 35 scheme or artifice to defraud with knowledge of its 36 fraudulent nature, and with specific intent to defraud . . . 37 .” J. App’x at 61-62 (emphasis added). Crespo responded, 38 “Yes.” Id. This admission, coupled with the Government’s 39 detailed proffer of the facts, satisfied the requirements of 40 Federal Rule of Criminal Procedure 11(b)(3). See Garcia, 41 587 F.3d at 518. 42 43 2. Crespo claims that the district court erred by 44 advising him to speak to his attorney when Crespo raised 45 questions about whether he should have pleaded guilty. A 46 district court may permit a defendant to withdraw a guilty 47 plea after acceptance only if he “can show a fair and just 2 1 reason for requesting the withdrawal.” Fed. R. Crim. P. 2 11(d)(2)(B). Although Crespo made comments during a hearing 3 that suggest that he was unhappy with the plea, he never 4 made a motion to withdraw his guilty plea. Crespo’s wish 5 to withdraw his plea appears motivated by his own 6 reevaluation of the strength of the Government’s case; that 7 is not a “fair and just” reason he should have been 8 permitted to withdraw his plea. See United States v. 9 Figueroa, 757 F.2d 466, 475 (2d Cir. 1985) (“The reasons 10 urged by [defendant] to support his withdrawal motion boil 11 down to a change of heart prompted by a reevaluation of the 12 government’s case against him; but these do not constitute 13 sufficient justification to overturn the district court’s 14 broad discretion in this area.”). 15 16 3. Crespo argues that the district court 17 impermissibly denied him the right to self-representation or 18 hybrid representation in violation of the Sixth Amendment. 19 Whether a defendant has knowingly and intelligently waived 20 counsel is a question of law, reviewed de novo, as applied 21 to the facts as found by the district court, which are 22 reviewed for clear error. See Brewer v. Williams, 430 U.S. 23 387, 403 (1977). “[E]ven after the right to proceed pro se 24 has been clearly and unequivocally asserted, the right may 25 be waived through conduct indicating that one is vacillating 26 on the issue or has abandoned one’s request altogether.” 27 United States v. Barnes, 693 F.3d 261, 271 (2d Cir. 2012). 28 29 Crespo filed a letter request for appointment of new 30 counsel, or, in the alternative, to appear pro se. The 31 district court held a hearing with both standby counsel and 32 appointed counsel, and at the hearing Crespo and his 33 attorney acknowledged that they had reconciled. 34 Furthermore, by accepting appointed counsel’s representation 35 for the months leading up to sentencing, Crespo made clear 36 by conduct that he had abandoned his request to represent 37 himself. See Id. at 272. Accordingly, the district court 38 did not violate Crespo’s Sixth Amendment rights. 39 40 Insofar as Crespo challenges the denial of hybrid 41 representation -- to which he had no constitutional right -- 42 he fails to demonstrate abuse of the district court’s 43 discretion to deny the request. See Clark v. Perez, 510 44 F.3d 382, 394 (2d Cir. 2008). 45 46 4. Crespo argues that his sentence was procedurally 47 and substantively unreasonable. We review sentencing under 3 1 a “deferential abuse-of-discretion standard.” United States 2 v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) 3 (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). A 4 sentence is procedurally reasonable so long as the district 5 court did not commit a “significant procedural error, such 6 as failing to calculate (or improperly calculating) the 7 Guidelines range, treating the Guidelines as mandatory, 8 failing to consider the [18 U.S.C.] § 3553(a) factors, 9 selecting a sentence based on clearly erroneous facts, or 10 failing to adequately explain the chosen sentence -- 11 including an explanation for any deviation from the 12 Guidelines range.” Gall, 552 U.S. at 51. 13 14 If the sentence is procedurally sound, we then 15 “consider the substantive reasonableness of the sentence 16 imposed . . . . tak[ing] into account the totality of the 17 circumstances.” Id. A sentence imposed by the district 18 court is substantively unreasonable only if it “cannot be 19 located within the range of permissible decisions.” Cavera, 20 550 F.3d at 189 (quoting United States v. Rigas, 490 F.3d 21 208, 238 (2d Cir. 2007)). We will set aside sentencing 22 decisions only in “exceptional cases,” id., as we will not 23 substitute our judgment for that of the district court, 24 United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). 25 26 Crespo makes three arguments as to why his sentence was 27 procedurally unreasonable. First, Crespo asserts that the 28 district court made no findings prior to imposing the 29 sentence; however, the district court stated its findings 30 and issued a memorandum explaining how it calculated 31 intended loss and why it applied and rejected certain 32 enhancements. Crespo argues that the notice of appeal 33 divested the district court of jurisdiction to issue this 34 memorandum, but the memorandum did not modify the judgment 35 substantively and was a permissible act in “aid of” the 36 appeal. See United States v. Nichols, 56 F.3d 403, 411 (2d 37 Cir. 1995). 38 39 Second, Crespo argues that the intended loss finding 40 (which added 14 points to the base offense level) was 41 erroneous because the Government did not prove that one of 42 the paintings at issue was fake, that Crespo intended to 43 sell it for approximately $725,000, or that Crespo knew the 44 artwork was fake. However, the record included admissions 45 from defendant that the painting was not real, testimony 46 regarding the discussed purchase price of the painting, and 47 a finding of Crespo’s intent to sell based on reasonable 4 1 inferences drawn from testimony and Crespo’s “dire financial 2 situation,” J. App’x at 736. 3 4 Third, Crespo argues that the district court did not 5 consider the sentencing factors in 18 U.S.C. § 3553(a). 6 However, Crespo can point to no record evidence that the 7 district court failed to consider the relevant factors, and 8 we do not require “robotic incantations” in reaching a 9 sentence. United States v. Crosby, 397 F.3d 103, 113 (2d 10 Cir. 2005); see also Fernandez, 443 F.3d at 30 (“[W]e 11 presume, in the absence of record evidence suggesting 12 otherwise, that a sentencing judge has faithfully discharged 13 her duty to consider the statutory factors.”). Accordingly, 14 each of Crespo’s three challenges to the procedural 15 reasonableness of his sentence fails. 16 17 As to substantive unreasonableness, Crespo argues that 18 undue weight was placed on intended loss. However, Crespo’s 19 sentence was within the Guidelines range and well within the 20 range of permissible decisions. See Cavera, 550 F.3d at 21 189. 22 23 5. Crespo argues that the restitution order was 24 erroneous because the Government assumed the fake artwork 25 was “worthless” in calculating the loss to victims. The 26 Mandatory Victims Restitution Act, 18 U.S.C. §§ 3663A and 27 3664, requires that a court determine the amount of each 28 victim’s losses caused by a defendant’s offense of 29 conviction. The district court’s determination need not be 30 “mathematically precise”; the district court must make a 31 “reasonable approximation of losses supported by a sound 32 methodology.” United States v. Gushlak, 728 F.3d 184, 195- 33 96 (2d Cir. 2013). 34 35 The district court ordered restitution to each victim 36 in the amount of the price paid to Crespo for the artwork. 37 To avoid any windfall to the victims, the district court 38 also ordered victims to return to the Government any artwork 39 for which they sought restitution. The Government would 40 sell the returned artwork and the proceeds would be used to 41 make restitution to the victims. This methodology was 42 sound, avoided the need for an ex ante independent appraisal 43 of every fake artwork that was sold, and was a reasonable 44 approximation of the victims’ losses. We therefore reject 45 Crespo’s argument that the district court erred in 46 calculating restitution. 47 5 1 6. Crespo claims that his sentencing testimony was 2 impermissibly coerced by the district court’s threat to 3 treat his silence as an indication of guilt. Because Crespo 4 did not object to the court’s statement at the time, his 5 argument is reviewed for plain error only. Under plain 6 error review, a defendant must “demonstrate that (1) there 7 was error, (2) the error was plain, (3) the error 8 prejudicially affected his substantial rights, and (4) the 9 error seriously affected the fairness, integrity or public 10 reputation of judicial proceedings.” United States v. Cook, 11 722 F.3d 477, 481 (2d Cir. 2013) (internal quotations 12 omitted). 13 14 The Government moved to revoke Crespo’s bond for 15 posting disparaging comments on the Wikipedia page of a 16 known grand jury witness. The district court considered the 17 motion at the beginning of the sentencing hearing, and asked 18 defense counsel whether Crespo admitted that he made the 19 comments. [JA 215-20]. Counsel responded that Crespo was 20 going to invoke his Fifth Amendment right to remain silent, 21 and the court responded by saying “Okay, I can make an 22 inference from that. All right, I’m going to accept the 23 government’s position that those changes were made by the 24 defendant, and we can proceed from there.” J. App’x at 220- 25 21. 26 27 The exchange, in context, does not lead to the 28 conclusion that the district court necessarily drew an 29 inference that Crespo committed the Wikipedia violation 30 because he was silent. Rather, the fairest reading of the 31 record shows that the district court most likely reached its 32 conclusion based on the Government’s motion and evidence -- 33 which Crespo was unable to meaningfully challenge or 34 contradict. See United States v. Hernandez, 445 F. App’x 35 409, 411 (2d Cir. 2011) (“If [defendant] had objected to the 36 inference drawn by the district court during sentencing, any 37 ambiguity about the court’s words could have been 38 resolved.”). Further, the district court did not revoke 39 Crespo’s bail as the government had sought in presenting 40 evidence regarding the Wikipedia comments. Nor did it 41 reference those comments in imposing sentence. In any 42 event, to the extent the district court’s statement about 43 the inference was an error, that error was certainly not so 44 serious as to affect the fairness, integrity, or reputation 45 of judicial proceedings, given the totality of circumstances 46 overwhelmingly supporting the district court’s sentence. 47 See Cook, 722 F.3d at 481; Hernandez, 445 F. App’x at 411. 6 1 7. Crespo argues that his trial counsel provided 2 constitutionally ineffective assistance by failing to object 3 to the inadequate plea colloquy, failing to heed Crespo’s 4 wish to withdraw his plea, and failing to object to the 5 violation of Crespo’s Fifth Amendment right to remain 6 silent. He also claims that his trial counsel was 7 ineffective because he permitted a defense expert to be 8 interviewed by the FBI. 9 10 To establish a claim that counsel was constitutionally 11 ineffective, a defendant “must show both that his counsel’s 12 performance was deficient as measured by objective 13 professional standards, and that this deficiency prejudiced 14 his defense.” Purdy v. United States, 208 F.3d 41, 44 (2d 15 Cir. 2000). “When ineffective assistance of counsel is 16 first raised in a court of appeals on direct review of a 17 conviction, it is often preferable for the court to decline 18 to consider the claim, awaiting its presentation in a 19 collateral proceeding.” United States v. Brown, 623 F.3d 20 104, 112 (2d Cir. 2010). We may do so, however, where the 21 factual record is sufficiently developed that resolution of 22 the claim is “beyond any doubt.” United States v. Gaskin, 23 364 F.3d 438, 468 (2d Cir. 2004). Because we identify no 24 error in the district court’s acceptance of Crespo’s guilty 25 plea, trial counsel could not have been ineffective for 26 failing to object on that basis. See, e.g., United States 27 v. Wolfson, 642 F.3d 293, 296 n.1 (2d Cir. 2011). Insofar 28 as the district court did not revoke Crespo’s bail at the 29 revocation hearing or reference his Wikipedia comments at 30 sentencing, and the challenged sentence finds overwhelming 31 support in the record, Crespo cannot show the requisite 32 prejudice from counsel’s failure to assert a Fifth Amendment 33 objection below. See Strickland v. Washington, 466 U.S. 34 668, 694 (1984). Accordingly, we conclude that these claims 35 fail on the merits. We decline to address Crespo’s 36 remaining ineffectiveness claims on the present record, 37 instead dismissing them without prejudice to their being 38 raised in collateral proceedings. 39 40 41 42 43 44 45 46 7 1 For the foregoing reasons, and finding no merit in 2 defendant’s other arguments, we hereby AFFIRM the judgment 3 of the district court. 4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 8