21-1779-cr
United States v. Bazemore
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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 22nd day of March, two thousand twenty-three.
4
5 PRESENT: RAYMOND J. LOHIER, JR.,
6 STEVEN J. MENASHI,
7 BETH ROBINSON,
8 Circuit Judges.
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10 UNITED STATES OF AMERICA,
11
12 Appellee,
13
14 v. No. 21-1779-cr
15
16 WILLIAM BAZEMORE, AKA Sealed Defendant
17 1,
18
19 Defendant-Appellant.*
20 ------------------------------------------------------------------
21
* The Clerk of Court is directed to amend the caption as set forth above.
1
1 FOR DEFENDANT-APPELLANT: BRIAN A. JACOBS (Curtis B.
2 Leitner, on the brief), Morvillo
3 Abramowitz Grand Iason &
4 Anello P.C., New York, NY
5
6 FOR APPELLEE: DANIELLE R. SASSOON,
7 Assistant United States
8 Attorney (Jacqueline C. Kelly,
9 David Abramowicz, Assistant
10 United States Attorneys, on the
11 brief), for Damian Williams,
12 United States Attorney for the
13 Southern District of New York,
14 New York, NY
15
16 Appeal from a judgment of conviction entered in the United States District
17 Court for the Southern District of New York (Analisa Torres, Judge).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
19 AND DECREED that the judgment of the District Court is AFFIRMED.
20 William Bazemore appeals from a judgment of conviction entered on July
21 19, 2021 in the United States District Court for the Southern District of New York
22 (Torres, J.), after he pleaded guilty to sex trafficking in violation of 18 U.S.C.
23 §§ 1591(a), (b)(1), and 2. Bazemore was sentenced principally to a within-
24 Guidelines term of 327 months’ imprisonment. We assume the parties’
25 familiarity with the underlying facts and the record of prior proceedings, to
26 which we refer only as necessary to explain our decision to affirm.
2
1 I. Bazemore’s Guilty Plea
2 Bazemore claims that the District Court erred in denying his motion to
3 withdraw his guilty plea. Under Federal Rule of Criminal Procedure 11(d)(2)(B),
4 “[a] defendant may withdraw a plea of guilty after it is accepted, but before
5 sentencing, only if the defendant can show a fair and just reason for requesting
6 the withdrawal.” United States v. Rose, 891 F.3d 82, 85 (2d Cir. 2018) (quotation
7 marks omitted). “We review a district court’s denial of a motion to withdraw a
8 guilty plea for abuse of discretion and any findings of fact in connection with
9 that decision for clear error.” United States v. Rivernider, 828 F.3d 91, 104 (2d
10 Cir. 2016) (quotation marks omitted).
11 Bazemore primarily argues that his plea was not knowing and voluntary
12 because his counsel misled him about whether he could “potentially” argue that
13 a sex trafficking offense under 18 U.S.C. § 1591 is not categorically a crime of
14 violence. Appellant’s Br. 27-34. We see things differently. During an
15 evidentiary hearing on Bazemore’s plea withdrawal motion, Bazemore’s
16 attorneys testified that they advised him that some uncertainty existed about
17 whether certain offenses qualify categorically as crimes of violence in light of
18 United States v. Davis, 139 S. Ct. 2319 (2019). The attorneys also testified that
3
1 they advised Bazemore that the impact of Davis on his offense of conviction
2 “was an issue that could be raised in the future, although it was unclear when or
3 how it could be raised,” and that he “couldn’t count on any reversals or any
4 findings that [his offense] was not a violent crime.” App’x 125; see id. at 129.
5 The District Court credited the testimony of the attorneys, and Bazemore does
6 not explain why we should disturb that finding. The record thus shows that
7 Bazemore’s attorneys advised him that Davis presented “a potential argument
8 that could be made” and otherwise accurately described to Bazemore the terms
9 of his plea agreement, which clearly states that Bazemore’s offense is a crime of
10 violence. Id. at 48, 129. Their legal advice was not as Bazemore now
11 characterizes it in support of his claim that his plea was not knowing and
12 voluntary.
13 Insofar as Bazemore asks us to assign error to the District Court’s decision
14 to credit his attorneys’ testimony and discredit his conflicting testimony at the
15 evidentiary hearing, we decline to do so. “[S]worn testimony given during a
16 plea colloquy carries such a strong presumption of accuracy that a district court
17 does not, absent a substantial reason to find otherwise, abuse its discretion in
18 discrediting later self-serving and contradictory testimony as to whether a plea
4
1 was knowingly and intelligently made.” Rivernider, 828 F.3d at 105 (quotation
2 marks omitted). During his plea allocution, Bazemore confirmed that he had
3 read the plea agreement and discussed it with his attorneys before he signed it
4 and that he was “satisfied with their representation of [him].” App’x 54.8, 54.19.
5 He also confirmed that he understood the terms of the agreement, that his
6 attorney’s predictions about his sentence could be wrong, that he and the
7 Government had agreed on the “appropriate calculation” of his Guidelines
8 range, that neither he nor the Government could argue for a different Guidelines
9 range, and that the District Court was free to impose a sentence that differed
10 from the one outlined in the agreement. App’x 54.19–54.22. For these reasons,
11 we conclude that Bazemore has not “raised a significant question about the
12 voluntariness of the original plea,” id. at 117 (quotation marks omitted), and that
13 his plea was knowing and voluntary. We note that other factors relevant to
14 assessing Bazemore’s plea withdrawal motion also weigh against granting the
15 motion to withdraw his plea. For example, Bazemore does not assert his legal
16 innocence, and over ten months elapsed between his guilty plea and his plea
17 withdrawal motion. United States v. Albarran, 943 F.3d 106, 117–18 (2d Cir.
18 2019).
5
1 Bazemore separately argues that he received ineffective assistance of
2 counsel in connection with his plea. See Strickland v. Washington, 466 U.S. 668
3 (1985)); United States v. Freeman, 17 F.4th 255, 265–66 (2d Cir. 2021). Because
4 Bazemore’s attorneys did not provide incorrect legal advice, their performance
5 did not “[fall] below an objective standard of reasonableness.” Freeman, 17 F.4th
6 at 265 (quotation marks omitted).
7 For these reasons, we conclude that the District Court did not abuse its
8 discretion in denying Bazemore’s motion to withdraw his guilty plea.
9 II. The Virtual Hearing
10 Bazemore also insists that the District Court erred by holding the
11 evidentiary hearing by videoconference without his express consent, thereby
12 violating both his constitutional rights and Federal Rule of Criminal Procedure
13 43(a). As an initial matter, Bazemore acknowledges that he did not object to
14 holding the hearing by videoconference and argues that the District Court
15 committed a structural error, which requires automatic vacatur of the judgment.
16 The argument that any error in holding the hearing virtually is structural is
17 foreclosed by our decision in United States v. Leroux, 36 F.4th 115 (2d Cir. 2022)
18 (applying plain error standard in reviewing a defendant’s challenge to the
6
1 district court’s failure to make the requisite CARES Act findings before
2 conducting a sentencing by videoconference where the defendant failed to object
3 to proceeding by videoconference).
4 “Plain error is (1) error (2) that is plain, (3) that affects substantial rights,
5 and (4) that seriously affects the fairness, integrity, or public reputation of
6 judicial proceedings.” United States v. Riggi, 541 F.3d 94, 102 (2d Cir. 2008).
7 Bazemore has not established that any error in the District Court’s conducting
8 the hearing on his motion to withdraw his guilty plea via videoconference
9 affected his rights or seriously affected the fairness, integrity, or public
10 reputation of judicial proceedings. As noted above, Bazemore never objected to
11 the remote proceeding. He has not suggested that he could not see and hear the
12 proceedings throughout the hearing. He does not contend that the District Court
13 could not see and hear him fully throughout his testimony. And, although he
14 asserts generally that he “appears to have been unable to confer privately with
15 his counsel throughout the hearing,” he does not indicate that he sought to
16 communicate any information to his counsel, or that his counsel sought to
17 communicate information to him, in connection with the proceeding.
18 Appellant’s Br. 40. Even if the District Court erred in conducting the hearing by
7
1 videoconference without an express waiver of Bazemore’s right to be present—a
2 question we need not resolve—Bazemore cannot demonstrate that any error was
3 sufficiently prejudicial to rise to the level of plain error.
4 We have considered Bazemore’s remaining arguments and conclude that
5 they are without merit. For the foregoing reasons, the judgment of the District
6 Court is AFFIRMED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk of Court
8