11-746-cr
United States v. Preston
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1st day of October, two thousand twelve.
PRESENT: CHESTER J. STRAUB,
ROBERT D. SACK,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 11-746-cr
MARSHAY J. PRESTON,
Defendant-Appellant.
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FOR APPELLEE: MONICA J. RICHARDS (Stephan J.
Baczynski, on the brief), Assistant
United States Attorneys, for
William J. Hochul, Jr., United
States Attorney for the Western
District of New York, Buffalo, New
York.
FOR DEFENDANT-APPELLANT: NICHOLAS J. PINTO, ESQ., New York,
New York.
Appeal from a judgment of the United States District
Court for the Western District of New York (Larimer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Marshay J. Preston appeals his
conviction entered on February 22, 2011 in the United States
District Court for the Western District of New York (Larimer, J.)
for: (1) possession of cocaine base with intent to distribute,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851
("Count One"); (2) possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
("Count Two"); (3) possession of a firearm and ammunition as a
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
("Count Three"); and (4) possession of a firearm as a felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ("Count Four").
On October 29, 2009, Preston pleaded guilty to Counts Three and
Four, and entered a plea of nolo contendere to Counts One and
Two. The district court sentenced Preston principally to a term
of imprisonment of 204 months, consisting of 144 months on Count
One, 60 months on Count Two (consecutively to the sentence
imposed on Count One), and 120 months on each of Counts Three and
Four (concurrently with the sentences imposed on Counts One and
Two).
On appeal, Preston argues that: (1) the district court
accepted his plea to Count Two without establishing a sufficient
factual basis; (2) his plea was not entered knowingly; and (3)
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the district court denied his request for a full hearing to
determine certain facts relevant to sentencing. We assume the
parties' familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
1. Factual Basis for Count Two
Preston argues that his conviction on Count Two should
be vacated because the district court lacked a sufficient factual
basis to conclude that the charged firearms were possessed in
furtherance of a drug trafficking crime. See 18 U.S.C.
§ 924(c)(1). Preston contends that the district court was
required to find a factual basis for his plea to Count Two
because he intended to enter a guilty plea pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970), rather than a plea of
nolo contendere. See Alford, 400 U.S. at 37-38 (holding that
court may accept guilty plea despite defendant's protestations of
factual innocence where court finds factual basis for plea and
plea was voluntary and intelligent).
Where, as here, a defendant raises on appeal a claim of
error pursuant to Rule 11 of the Federal Rules of Criminal
Procedure that he did not raise in the district court, we review
for plain error. United States v. Torrellas, 455 F.3d 96, 103
(2d Cir. 2006).
Rule 11(b)(3) requires a district court, prior to
entering judgment on a plea, to "determine that there is a
factual basis for the plea." Fed. R. Crim. P. 11(b)(3). Rule 11
does not require the district court to determine whether the
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defendant is guilty by a preponderance of the evidence or to
predict whether a jury would find him guilty beyond a reasonable
doubt. United States v. Maher, 108 F.3d 1513, 1524 (2d Cir.
1997). Rather, the court must "assure itself simply that the
conduct to which the defendant admits is in fact an offense under
the statutory provision under which he is pleading guilty." Id.
In establishing the factual basis for a plea, "[a] court may rely
on defendant's own admissions, information from the government,
or other information appropriate to the specific case." United
States v. Andrades, 169 F.3d 131, 136 (2d Cir. 1999).
Assuming arguendo that the district court was
required to establish a factual basis for Preston's plea to Count
Two, we conclude that the record provides an adequate factual
basis for his conviction for possession of a firearm in
furtherance of a narcotics trafficking crime. A person may be
convicted for "mere possession of a firearm" pursuant to 18
U.S.C. § 924(c)(1)(A) so long as "that possession is 'in
furtherance of' a drug trafficking crime." United States v.
Lewter, 402 F.3d 319, 321 (2d Cir. 2005). To satisfy the "in
furtherance" element, the Government must demonstrate a "specific
'nexus' between the charged firearm and the charged drug selling
operation." United States v. Snow, 462 F.3d 55, 62 (2d Cir.
2006) (quoting United States v. Finley, 245 F.3d 199, 203 (2d
Cir. 2001)). Whether such a nexus exists is a fact-intensive
inquiry, and courts look to many factors, including but not
limited to "the type of drug activity that is being conducted,
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accessibility of the firearm, the type of the weapon, whether the
weapon is stolen, the status of the possession (legitimate or
illegal), whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is
found." Id. at 62 n.6 (quoting United States v. Ceballos-Torres,
218 F.3d 409, 414-15 (5th Cir. 2000)).
At Preston's plea hearing, the Government proffered
that a search of Preston's residence yielded four guns (three of
them loaded, one with an obliterated serial number), numerous
rounds of ammunition, 0.99 grams of cocaine, two digital scales,
unused ziplock bags of the kind used to distribute drugs, and a
surveillance camera that streamed live video of the front of the
residence. The Government also submitted a memorandum
referencing Preston's written statement that the cocaine and
three of the four recovered guns belonged to him, that he had
tried to cook the cocaine into cocaine base, and that he sold
crack at a rate of $500 per week. Even if, as Preston told
police, he did not sell drugs from his house or have firearms
present during drug transactions, "[p]ossession of a firearm to
defend a drug stash clearly furthers the crime of possession with
intent to distribute the contents of that stash." Lewter, 402
F.3d at 322.
Accordingly, we are satisfied that there was an
adequate factual basis for Preston's plea to Count Two, and the
district court's decision to accept Preston's plea was not
plainly or otherwise erroneous.
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2. Knowing Plea
Preston next argues that his plea was not knowing
because he mistakenly believed he had preserved his right to
appeal the district court's earlier denial of a motion to
suppress Preston's post-arrest statement and the district court
made no effort to correct that misunderstanding.
As noted above, because Preston did not raise this
objection before the district court, we review for plain error.
See Torrellas, 455 F.3d at 103. We consider the entire record
when determining whether a Rule 11 violation occurred and in
assessing the effect of a likely error. Id.
Contrary to Preston's contention, the record contains
no evidence that he believed or was advised that he could
preserve his right to appeal the denial of his motion to
suppress. Although defense counsel stated that the court could
admit Preston's post-arrest statement "for plea purposes" but
that Preston was "not necessarily adopting either the
voluntariness or the reliability of the statement by virtue of
its admission at these proceedings," counsel's statement, without
more, is insufficient to show that Preston believed he had
preserved his right to appeal the district court's earlier
decision. It is well settled that a defendant's plea of guilty
waives all non-jurisdictional challenges unless the defendant
reserves such issues for appeal in writing with the consent of
the court and the Government. Hayle v. United States, 815 F.2d
879, 881 (2d Cir. 1987); see Fed. R. Crim. P. 11(a)(2) ("With the
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consent of the court and the government, a defendant may enter a
conditional plea of guilty or nolo contendere, reserving in
writing the right to have an appellate court review an adverse
determination of a specified pretrial motion."). Defense counsel
did not request a conditional plea, nor did he seek the
Government's or the court's consent to a conditional plea.
Further, during the plea colloquy, the district court
advised Preston that his plea would waive many of his rights but
would not preclude him from appealing his sentence on the grounds
that it was not properly considered or that it was in violation
of 18 U.S.C. § 3553(a) or the Sentencing Guidelines. Preston
also confirmed his understanding that he would not be able to
withdraw his guilty plea if he was unhappy with the sentence or
had second thoughts. The district court was not required to
specifically inquire whether Preston understood that a guilty
plea would waive his right to appeal the earlier denial of his
motion to suppress. See United States v. Broce, 488 U.S. 563,
573 (1989) (stating that "conscious waiver is [not] necessary
with respect to each potential defense relinquished by a plea of
guilty").
Under these circumstances and based on the entire
record, we are satisfied that Preston's plea was knowing and
voluntary.
3. Procedural Reasonableness
Finally, Preston contends that the district court
abused its discretion by denying his request for a full
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evidentiary hearing as to a recorded conversation that the court
considered relevant to sentencing.
Sentencing courts have broad discretion to consider
information relevant to sentencing. United States v. Watts, 519
U.S. 148, 151 (1997) (per curiam); see also 18 U.S.C. § 3661 ("No
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.").
A district court is not required to hold a full-blown evidentiary
hearing to address sentencing disputes. United States v. Slevin,
106 F.3d 1086, 1091 (2d Cir. 1996). Rather, the court must
simply "afford the defendant some opportunity to rebut the
Government's allegations." Id. (internal quotation marks
omitted). We review the district court's choice of procedure to
decide sentencing disputes for abuse of discretion. Id.
Here, the record reflects that the district court
afforded Preston an opportunity to rebut the Government's
allegations by contesting the reliability of the recording and
placing it in context. Preston's counsel challenged the
reliability of the recorded conversation both in a written
sentencing submission and at the sentencing hearing. In
addition, Preston addressed the recording during his own remarks
at the sentencing hearing. The court was not required to conduct
a full-blown hearing to allow Preston to rebut the Government's
allegations. Accordingly, we find that the district court did
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not abuse its discretion when it denied Preston's request for a
hearing.
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We have considered Preston's remaining arguments and
find them to be without merit. Accordingly, we hereby AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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