United States v. DiBiase (Paul) , 649 F. App'x 77 ( 2016 )

15-751-cr
United States v. DiBiase (Paul)
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 23rd day of May, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 RALPH K. WINTER,
8 DENNIS JACOBS,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 15-751-cr
16
17 PAUL DIBIASE,
18 Defendant-Appellant,
19
20 DANIEL DIBIASE,
21 Defendant.
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR APPELLEE: Benjamin Allee, Karl Metzner,
25 Assistant United States
26 Attorneys, for Preet Bharara,
27 United States Attorney for the
1
1 Southern District of New York,
2 New York, New York.
3
4 FOR APPELLANT: Daniel M. Perez, Law Offices of
5 Daniel M. Perez, Newton, New
6 Jersey.
7
8 Paul DiBiase, pro se, Butner,
9 North Carolina (supplemental and
10 reply briefs).
11
12 Appeal from an amended judgment of the United States
13 District Court for the Southern District of New York (Ramos,
14 J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the amended judgment of the district court
18 be AFFIRMED.
19
20 Paul DiBiase appeals from the amended judgment of
21 conviction following his guilty plea in the United States
22 District Court for the Southern District of New York (Ramos,
23 J.), for crimes related to a string of home invasion
24 robberies and burglaries. Pursuant to a plea agreement,
25 DiBiase pled guilty to racketeering conspiracy in violation
26 of 18 U.S.C. § 1962(d) (Count One) and being a felon in
27 possession of a firearm as an Armed Career Criminal in
28 violation of 18 U.S.C. §§ 922(g) and 924(e) (Count Two).
29 DiBiase was sentenced to a total of 324 months’ imprisonment
30 (240 months on Count One, and 324 months on Count Two, to
31 run concurrently). We assume the parties’ familiarity with
32 the underlying facts, the procedural history, and the issues
33 presented for review.
34
35 DiBiase’s plea agreement stipulated that his Sentencing
36 Guidelines range was 292 to 365 months’ imprisonment, and he
37 agreed not to appeal any sentence within or below that
38 range. With limited exceptions, “[a] defendant’s knowing
39 and voluntary waiver of his right to appeal a conviction and
40 sentence within an agreed upon guideline range is
41 enforceable.” United States v. Pearson, 570 F.3d 480, 485
42 (2d Cir. 2009). Even a knowing and voluntary appellate
43 waiver may be unenforceable if the government breached the
44 plea agreement; if the sentence was based on ethnic, racial,
45 or other constitutionally-prohibited biases; or if the court
46 failed to communicate any rationale for the defendant’s
2
1 sentence. United States v. Gomez-Perez, 215 F.3d 315, 319
2 (2d Cir. 2000).
3
4 1. DiBiase argues that his plea as to Count Two was
5 not knowing and voluntary because of two alleged violations
6 of Federal Rule of Criminal Procedure 11(b). Since DiBiase
7 did not object to the alleged violations below, the claim is
8 reviewed for plain error.1 DiBiase cannot show error, much
9 less satisfy the plain error standard.
10
11 First, as the district court determined, there was a
12 sufficient factual basis for DiBiase’s plea as to Count Two
13 (felon-in-possession): DiBiase confirmed the government’s
14 description of the offense conduct, including the use of a
15 firearm in connection with the home invasions; he described
16 the same in his own words; he attested that the firearm was
17 available to him during the course of the robberies; and he
18 admitted that he had prior felony convictions. See Fed. R.
19 Crim. P. 11(b)(3).
20
21 Second, the district court properly informed DiBiase
22 that a conviction on Count Two carried a fifteen-year
23 mandatory minimum term of imprisonment, pursuant to the
24 contemplated § 924(e) sentencing enhancement. See Fed. R.
25 Crim. P. 11(b)(1)(I) (the district court must inform
26 defendant of and ensure he understands “any mandatory
27 minimum penalty”). Assuming that, at sentencing, the
28 district judge agreed that DiBiase’s prior felonies
29 constituted ACCA predicates, that mandatory minimum would
30 apply. Contrary to DiBiase’s argument, it would have been
31 error under the circumstances for the district court not to
32 ensure that DiBiase was aware of this mandatory minimum, so
33 that his decision to plead guilty was fully informed.2
1
“Plain error review requires a defendant to
demonstrate that ‘(1) there was error, (2) the error was
plain, (3) the error prejudicially affected his substantial
rights, and (4) the error seriously affected the fairness,
integrity or public reputation of judicial proceedings.’”
United States v. Youngs, 687 F.3d 56, 59 (2d Cir. 2012)
(quoting United States v. Flaharty, 295 F.3d 182, 195 (2d
Cir. 2002)).
2
Furthermore, DiBiase cannot reasonably establish that
but for being informed that a fifteen-year mandatory minimum
applied he would not have pled guilty to Count Two. See
3
1 2. DiBiase’s pro se supplemental and reply briefs
2 argue principally that the government’s sentencing advocacy
3 breached the plea agreement. “We review interpretations of
4 plea agreements de novo and in accordance with principles of
5 contract law.” United States v. Riera, 298 F.3d 128, 133
6 (2d Cir. 2002). Ambiguities are resolved in the defendant’s
7 favor. Id. “To determine whether a plea agreement has been
8 breached, a court must look to what the parties reasonably
9 understood to be the terms of the agreement . . . .” United
10 States v. Lawlor, 168 F.3d 633, 636 (2d Cir. 1999) (internal
11 quotation marks omitted).
12
13 The government agreed not to seek “an upward departure
14 from” the stipulated Guidelines range; but the plea
15 agreement permitted the government to “seek a sentence
16 outside” that range based upon the 18 U.S.C. § 3553(a)
17 factors, to recommend where within that range (or any other
18 range as determined by the district court) DiBiase should be
19 sentenced, and to present any facts relevant to sentencing.
20 App’x of Appellant at 27. The government’s sentencing
21 advocacy was entirely in keeping with this agreement.
22
23 3. To the extent that DiBiase argues that he received
24 ineffective assistance of counsel in entering into the plea
25 agreement (or otherwise),3 we decline to address these
26 issues on direct appeal. DiBiase may raise these claims in
27 a collateral proceeding. See United States v. Oladimeji,
28 463 F.3d 152, 154 (2d Cir. 2006) (“Where the record on
29 appeal does not include the facts necessary to adjudicate a
30 claim of ineffective assistance of counsel, our usual
31 practice is not to consider the claim on the direct appeal,
United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005).
If anything, a defendant would be expected to be more
likely, not less, to plead guilty in the absence of a
mandatory minimum sentence. Furthermore, DiBiase received
substantial benefits in exchange for his guilty plea: The
government dropped one charged firearms count and forwent
charging additional counts that together would have carried
mandatory consecutive sentences of 30 years or more (on top
of the sentence imposed on Counts One and Two).
3
See Parisi v. United States, 529 F.3d 134, 139 (2d
Cir. 2008) (claim that attorney was ineffective in advising
defendant to accept plea agreement survives appellate
waiver).
4
1 but to leave it to the defendant to raise the claims on a
2 petition for habeas corpus under 28 U.S.C. § 2255.”); United
3 States v. Morgan, 386 F.3d 376, 383 (2d Cir. 2004).
4
5 4. DiBiase’s challenges to the district court’s
6 calculation of his Guidelines range and to his sentence are
7 foreclosed by the appellate waiver, and we therefore do not
8 reach them. See Morgan, 386 F.3d at 380-82.
9
10 For the foregoing reasons, and finding no merit in
11 DiBiase’s other arguments, the amended judgment of the
12 district court is AFFIRMED.
13
14 The district court is DIRECTED to further amend the
15 amended judgment to correct a typographical error as to
16 Count Two. As indicated in this Summary Order, DiBiase
17 pleaded guilty to violating 18 U.S.C. §§ 922(g) and 924(e).
18 The amended judgment for that count cites “18 U.S.C.
19 § 924(c)(2)(A)(ii)”--a section that does not exist.
20
21 FOR THE COURT:
22 CATHERINE O’HAGAN WOLFE, CLERK
23
5