Case Information
*1 13-1019
United States v. Dean
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21 st day of November, two thousand fourteen.
PRESENT:
B ARRINGTON D. P ARKER ,
D EBRA A NN L IVINGSTON ,
C HRISTOPHER F. D RONEY ,
Circuit Judges .
______________________________________________
U NITED S TATES OF A MERICA ,
Appellee , -v.- No. 13-1019-cr
E DWARD D EAN AKA S KIP ,
Defendant-Appellant .
__________________________________________
R OBERT A. C ULP , Law Office of Robert A. Culp, Garrison, NY, for Defendant-Appellant .
S ONJA M. R ALSTON , Attorney, Appellate Section, Mythili Raman, Acting Assistant Attorney General, Denis J. McInerney, Deputy Assistant Attorney General, U.S. Department of Justice, Criminal Division, Washington, DC; Brenda Sannes, Assistant United States Attorney, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Defendants-Appellees . UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the District Court are AFFIRMED.
On August 7, 2012, Defendant-Appellant Edward Dean pled guilty in the Northern District
of New York to production of child pornography in violation of 18 U.S.C. § 2251(a), and to
transporting a minor across state lines for the purpose of engaging in illicit sexual conduct in
violation of 18 U.S.C. § 2423(a). On December 21, 2012, Dean orally moved to withdraw his guilty
plea. The district court (McAvoy,
J.
) denied this motion by written opinion on February 6, 2013.
On March 4, 2013, he sentenced Dean to a term of 300 months’ imprisonment, to be followed by
20 years of supervised release. Dean timely appealed the denial of the motion to withdraw and the
sentence. In a summary order filed on June 25, 2014, this Court remanded the case to the district
court pursuant to
United States v. Jacobson
,
Our
Jacobson
remand required Judge McAvoy to explain statements he made during
sentencing that, according to Dean, required his recusal from the case. Sections 455(a) and (b)(1)
*3
of Title 28 require a judge to disqualify himself “in any proceeding in which his impartiality might
reasonably be questioned,”
id.
§ 455(a), or “[w]here he has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary facts concerning the proceeding,”
id.
§
455(b)(1). Where, as here, a motion to recuse was not made below, “we review a district court’s
failure to recuse itself for plain error.”
United States v. Carlton
,
We conclude that Judge McAvoy did not plainly err by failing to recuse himself.
Immediately prior to sentencing, Dean sought to revisit his motion to withdraw his guilty plea and
alleged that his attorney had failed to present information concerning his mental state in support of
that motion. Judge McAvoy’s response suggested that he may have independently gathered
information about Dean’s mental condition. But on remand, Judge McAvoy clarified – and had two
U.S. Marshals confirm – that he did not “communicate with the ‘Marshals Service’ or anyone about
the defendant’s mental state” or “receive any such communication from any such person who had
custody of him during the entire proceeding.” These assurances, coupled with the context
surrounding the statements, satisfy us that no “reasonable person, knowing all the facts, would
question the judge’s impartiality.”
United States v. Yousef
,
As for the substance of the district court’s decision to deny Dean’s motion to withdraw his
plea, we review the denial for an abuse of discretion and reverse only when it “rests on an error of
law, a clearly erroneous finding of fact, or otherwise cannot be located within the range of
permissible decisions.”
United States v. Gonzalez
, 420 F.3d 111, 120 (2d Cir. 2005) (internal
quotation marks omitted). A motion to withdraw a plea before sentencing may be granted when the
defendant demonstrates a “fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.
*4
11(d)(2)(B). “While this standard implies that motions to withdraw prior to sentence should be
liberally granted, a defendant who seeks to withdraw his plea bears the burden of satisfying the trial
judge that there are valid grounds for withdrawal.”
United States v. Doe
,
We detect no abuse of discretion in the denial of Dean’s motion to withdraw his plea. In his
plea allocution, Dean stated that his emotions had been “up and down” and that he had been under
“supervision,” but Dean confirmed that he was not on medication or subject to direct intervention.
A22. He affirmed that he was pleading voluntarily. A23. Dean’s statements during the remainder
of the hearing — including his attempts to correct elements of the government’s recitation of the
facts — confirm that he understood the gravity of the proceeding. Yet when he sought to withdraw
his plea, Dean’s attorney stated that Dean had “been on suicide watch” prior to the plea hearing and
felt that he was “under duress.” A100. As the district court noted in denying the motion, these
statements were unsubstantiated and “simply contradict[ed] what he said at his plea allocution.”
Torres
,
Next, Dean challenges his sentence, arguing that it is both procedurally and substantively
unreasonable. This Court reviews all sentences under a “deferential abuse-of-discretion standard.”
United States v. Cavera
,
The district court committed no procedural error. Dean first argues that the district court
erred in applying Guidelines § 4B1.5(b) to enhance his sentence for engaging “in a pattern of
activity involving prohibited sexual conduct.” But a “pattern of activity” requires only “two
separate occasions” of prohibited conduct, and Dean concedes that he engaged in at least two
prohibited sexual acts with the victim in this case. U.S.S.G. § 4B1.5(b) cmt. 4(B)(i);
see United
States v. Broxmeyer
,
Turning to Dean’s substantive reasonableness challenge, we conclude that the district court’s
sentence was permissible. The district court thoroughly considered Dean’s criminal conduct and
his history. Based on the facts in the record, its imposition of a below-Guidelines sentence was not
one of the “rare case[s]” where the sentence is “shockingly high.”
United States v. Rigas
, 583 F.3d
108, 123 (2d Cir. 2009). Nor is Dean’s prior state sentence a proper benchmark for the
reasonableness of his federal sentence. “When a defendant in a single act violates the peace and
dignity of two sovereigns by breaking the laws of each, he has committed two distinct offences.”
*7
Heath
v.
Alabama
,
We have considered Dean’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk