United States v. Doyle , 545 F. App'x 73 ( 2013 )

11-5265-cr
United States v. Doyle
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 26th day of November, two thousand thirteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 CHESTER J. STRAUB,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13
14 Appellee,
15
16 -v.- No. 11-5265-cr
17
18 THOMAS A. DOYLE,
19
20 Defendant-Appellant.
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22
23 FOR DEFENDANT-APPELLANT: JANE S. MEYERS, Brooklyn, NY.
24
25 FOR APPELLEE: AMANDA KRAMER (Justin Anderson,
26 on the brief) for Preet Bharara,
27 United States Attorney for the
28 Southern District of New York.
1
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (McMahon, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Defendant-appellant Thomas A. Doyle appeals his wire
9 fraud conviction and sentence of, inter alia, 72 months’
10 imprisonment and $880,000 in restitution. We assume the
11 parties’ familiarity with the underlying facts, the
12 procedural history, and the issues presented for review.
13 Rule 11. Doyle argues that the district judge
14 participated in plea discussions in violation of Federal
15 Rule of Criminal Procedure 11(c)(1). Doyle cites the
16 court’s admonition that there would be a deadline for
17 “acceptance of responsibility points” and that, “if” Doyle
18 intended “to take a plea,” it was in his “interest to do it
19 before June 21” so that he could have “one extra point
20 shaved off [his] guideline number.”
21 “Issues arising under Rule 11(c)(1) are highly
22 fact-specific and, as a result, such situations must be
23 analyzed in terms of the purposes of the rule, and not with
24 illogical rigidity.” United States v. Paul, 634 F.3d 668,
25 672 (2d Cir. 2011) (internal quotation marks omitted). If,
26 as here, a purported Rule 11(c)(1) violation is not
27 presented to the district court, we review the claim for
2
1 plain error. See United States v. Davila, 133 S. Ct. 2139,
2 2147 (2013). In conducting plain-error analysis, we
3 consider whether there was “(1) [an] ‘error,’ (2) that is
4 ‘plain,’ and (3) that ‘affect[s] substantial rights.’”
5 Johnson v. United States, 520 U.S. 461, 466-67 (1997)
6 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
7 “If all three conditions are met, [we] may then exercise
8 [our] discretion to notice a forfeited error, but only if
9 (4) the error ‘seriously affect[s] the fairness, integrity,
10 or public reputation of judicial proceedings.’” Id.
11 (quoting Olano, 507 U.S. at 732 (other internal quotation
12 marks omitted)).
13 Doyle’s claim does not survive the plain-error test
14 because, even if the court’s remark were error, Doyle has
15 not shown that it affected his substantial rights. Doyle
16 “must show a reasonable probability that, but for the error,
17 he would not have entered the plea.” Davila, 133 S. Ct. at
18 2147 (internal quotation mark omitted). No matter how much
19 pressure the district court might have put on Doyle to plead
20 guilty before the June 21 deadline, he did not succumb to
21 that pressure. He pled guilty on July 11, 2011, nearly
22 three weeks after the deadline. Doyle has not shown a
23 reasonable probability that, if the district court had not
24 commented as it did, he would have gone to trial.
3
1 Restitution and Plea Agreement. “A defendant is
2 deprived of due process when the government breaches a
3 plea-agreement provision on which the defendant relied ‘in
4 any significant degree’ when entering the guilty plea.”
5 United States v. Eberhard, 525 F.3d 175, 178 (2d Cir. 2008)
6 (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)).
7 “There is [] a very limited exception to the need for a
8 remedy for a plea agreement breach by the government where
9 the violation is so minor that it does not cause the
10 defendant to suffer any meaningful detriment. In assessing
11 whether a defendant suffered a meaningful detriment, the
12 critical question is what the defendant reasonably
13 understood to be the terms of the plea agreement, and
14 whether his or her reasonable expectations have been
15 fulfilled.” United States v. Vaval, 404 F.3d 144, 155 (2d
16 Cir. 2005) (citation omitted). Since the alleged breach was
17 not presented to the district court, we review only for
18 plain error affecting substantial rights and the fairness of
19 the judicial proceedings. See United States v. MacPherson,
20 590 F.3d 215, 218-19 (2d Cir. 2009).
21 Doyle fails to show a more than de minimis breach, if
22 there was a breach at all, of the plea agreement in the
23 government’s request for and district court’s setting of
24 $880,000 in restitution. The plea agreement indicated
4
1 restitution of only $105,000, but also stated a forfeiture
2 amount of $880,000. In raising Doyle’s restitution figure
3 to match the forfeiture amount, the district court made
4 clear that Doyle’s combined financial obligation under the
5 forfeiture and restitution orders was capped at $880,000,
6 the amount of forfeiture to which Doyle had already agreed
7 and does not challenge on appeal.
8 The government and district court merely chose to
9 channel the $880,000 Doyle owed to the government to the
10 victim, who was suffering a loss of that amount because he
11 did not yet have possession of the painting. Either way,
12 Doyle owed $880,000 to someone before and after the alleged
13 breach of the plea agreement. Changing to whom he owed it
14 did not affect Doyle’s substantial rights or the fairness of
15 the proceeding.
16 Loss Calculation. Doyle’s supplemental pro se brief
17 argues that Judge McMahon should have granted a continuance
18 so that the painting could be appraised in connection with a
19 loss determination. This argument fails for three reasons.
20 [1] Doyle can hardly fault the Probation Office and
21 district court for using the $70,000 to $120,000 range to
22 which he agreed in the plea agreement.
23 [2] A sentencing court has “broad discretion” over
24 scheduling. United States v. Doe, 239 F.3d 473, 475 (2d
5
1 Cir. 2001). We will not vacate a sentence on the basis of
2 improper denial of a continuance unless it (1) substantially
3 impaired the defendant’s opportunity for a fair sentence and
4 (2) was arbitrary. Id. Doyle has made neither showing.
5 [3] A “loss” under § 2B1.1 “is the greater of actual
6 loss or intended loss.” U.S.S.G. § 2B1.1 Application Note
7 3(A). Doyle intended to and did sell an 80% ownership
8 interest then worth $620,000 for $880,000, an intended loss
9 of $260,000 at the then-prevailing market rate. The
10 stipulated loss range of $70,000 to $120,000 was therefore a
11 conservative estimate of loss.1
12 We have considered all of Doyle’s remaining arguments
13 and conclude that they are without merit. The judgment of
14 the district court is hereby affirmed.
15
16 FOR THE COURT:
17 CATHERINE O’HAGAN WOLFE, CLERK
1
Doyle initially challenged his sentence as
procedurally and substantively unreasonable for reasons
other than the purported loss calculation error. Doyle has
now withdrawn those arguments. See Motion Order, Oct. 22,
2013, ECF No. 125.
6