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

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 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

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 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

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 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

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 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

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 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.

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 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

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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

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