Case Information
‐ 3739 ‐ cr(L) United States
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
At stated term Court Appeals Second Circuit, held Thurgood Marshall Courthouse, Foley Square, City New York, 17th day April, two thousand seventeen. PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges
BRIAN M. COGAN,
District Judge . [*]
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UNITED STATES OF AMERICA,
Appellee ‐ ‐ cr (L) ‐ ‐ cr (Con) ‐ cr (Con)
AISHA BABILONIA, RUBEN DAVIS, AKA
BLODDY RUBEN, AKA FAT MAN, AKA FAT
BOY, ROGER KEY, AKA SEALED DEFENDANT AKA LUCHIE,
Defendants Appellants, *2 RUBEN FERNANDEZ, AKA POPS, RICHARD
PALMER, AKA P.O., AKA P.O.P., PEDRO
MARQUEZ, AKA BURNS, AKA BERN, ANDREA
ISAROON, AKA CHAZ, DENNIS FREDERICKS,
AKA ICE, CLAYTON MOLLETTE, AKA KILLER,
AKA CLAY, STEVEN HERBERT, AKA ATTA,
SHUNDU DAVIS, AKA DAVIS SHUNDU, JAMES
MARTIN, DEXTER ERBY, AKA ADDI, AKA DIDA,
YOUSSOUF DIOMADE, MOUSTAPHA GUEYE,
KHALILAH MATTOCKS, AKA LILS, JOSE
CAPRIATA, GEORGE DAVIS, AKA CHEE CHEE,
KEITH PURVIS, AKA KIZ,
Defendants. [*]
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FOR APPELLEE: MARGARET GARNETT, Assistant United
States Attorney (Abigail Kurland, Assistant Attorney, brief ), for Joon H. Kim, Acting Attorney Southern District New York, New York, New York.
FOR DEFENDANT APPELLANT ROBERT WILLIAM RAY, Thompson & Knight AISHA BABILONIA: LLP, New York, New York.
FOR DEFENDANT APPELLANT CHARLES F. WILLSON, Office Federal RUBEN DAVIS: Defender District Connecticut,
Hartford, Connecticut. Appeal District Court Southern District New York (Stein, J. ).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED judgments are AFFIRMED . *3 Defendant ‐ appellant Aisha Babilonia appeals a September 22, judgment of court, following her guilty plea conspiracy commit interstate stalking. Babilonia challenges her sentence months ʹ imprisonment procedurally substantively unreasonable. Defendant ‐ appellant Ruben appeals February judgment court, following his plea drug distribution conspiracy related firearm charge. argues principally convictions should be vacated because factual basis his inadequate was deprived right conflict free counsel. We assume parties ʹ familiarity underlying facts, procedural history, issues appeal. Babilonia
Babilonia conviction arises out murder plot targeted Babilonia abusive boyfriend Matthew Allen. had told others, including Roger Key, about abuse she suffered, Key hired an associate, Jiya Canady, kill Allen. provided Key photo Allen attempted murder. On November Canady drove shooter, Jose Capriata, location Brooklyn where they been told Allen staying, Capriata shot man who turned out an innocent bystander. *4 On February 28, 2014, Babilonia pled to superseding Information charging federal stalking conspiracy violation of U.S.C. §§ and 2261A. Pursuant her agreement, government agreed to dismiss open charges for murder ‐ for ‐ hire conspiracy attempted murder ‐ for ‐ hire against her. The parties stipulated sentencing range of months ʹ imprisonment. agreement further noted neither party would seek departure, upward downward, from stipulated range.
After conclusion Key ʹ s trial, advised parties its intention consider upward departure Babilonia s Guidelines range requested government highlight evidence presented at Key trial relating participation Allen murder hire plot. government provided testimony Canady, cooperating witness; telephone records cellsite location maps Babilonia, Key, Canady cell phones; photograph Allen texted Key. On September imposed maximum statutory sentence months.
We review reasonableness sentence procedure followed sentencing abuse discretion. Cavera (en banc). ʺ A sentence procedurally unreasonable if ʹ fails calculate (or improperly calculates) Sentencing Guidelines range, treats Sentencing Guidelines mandatory, fails consider Section 3553(a) factors, selects sentence based on clearly erroneous facts, or fails adequately explain chosen sentence. ʹʺ v. Aldeen , F.3d 251 (2d Cir. 2015) (quoting Chu, F.3d (2d Cir. 2013)). We vacate sentences substantive unreasonableness ʺ only exceptional cases where trial court decision cannot located within range permissible decisions, is, when sentences are so shockingly high, shockingly low, otherwise unsupportable as matter law allowing them stand would damage administration justice. ʺ Aldeen F.3d (citation internal quotation marks omitted).
Babilonia sentence was not procedurally unreasonable. district provided parties advance notice it considering upward departure under Policy Statement 5K2.21, which provides ʺ may depart upward reflect actual seriousness offense based conduct (1) underlying charge dismissed part agreement . . . (2) enter into determination applicable guideline range. ʺ U.S.S.G. § 5K2.21. During sentencing proceeding, explained why it had decided upwardly depart ‐‐ played significant role plan stalk murder Matthew Allen. App. explanation sufficient. See Campbell ( [F]or § 5K2.0 departures, courts need make talismanic reference [intermediate *6 Guidelines levels], so long is careful explanation in the record the reasons the extent the departure. ).
Nor did district court abuse its discretion in denying Babilonia request Fatico hearing. ʺ district court is not required, either Due Process Clause federal Sentencing Guidelines, hold full blown evidentiary hearing resolving sentencing disputes. All required is that court afford some opportunity rebut Government allegations. Slevin (citations internal quotation marks omitted).
Babilonia made her request Fatico hearing after district court announced it intended impose statutory maximum sentence. district court gave notice its intent consider such sentence, however, months sentencing proceeding. During sentencing proceeding, gave Babilonia ample opportunity contest accuracy facts considering its determination, Babilonia voiced her objections inferences drew those facts. Although concluded, after its discussion those facts inferences, Babilonia played significant role plan stalk murder Matthew Allen, ʺ App. determination involve new issue which been heard. Accordingly, did not abuse its discretion or violate Babilonia due process rights by declining to hold Fatico hearing.
Finally, Babilonia sentence was not substantively unreasonable. ʺ If the ultimate sentence reasonable sentencing judge did not commit procedural error in imposing that sentence, we will not second guess weight (or lack thereof) that judge accorded given factor specific argument made pursuant factor. Fernandez 2006), abrogated other grounds by Rita U.S. (2007). considered duress Babilonia under in light abuse she suffered, set forth in mitigation report, personal statement,
letters she submitted court. Considering evidence light all Section 3553(a) factors, however, determined mitigating effect abuse outweighed involvement plan kill Allen, which included texting photograph Allen Key attempted murder. fact balance sentencing factors way desired does render sentence unreasonable.
A. Factual Basis Plea argues guilty aiding abetting Section 924(c) offense lacked sufficient factual basis. On October pleaded *8 Count One (conspiracy distribute narcotics) and Count Two (using, carrying, and possessing firearms, aiding abetting same, in connection the narcotics conspiracy) second Superseding Indictment. During plea hearing, Davis described in his own words his conduct related two charged crimes. To end, posed a series questions Davis, government, counsel. At one point colloquy, offered adjourn hearing resume morning after been able confer further his counsel; Davis, through attorney, declined offer. The government then proffered what it planned prove trial both counts. raised no objection government recitation subsequently pled both counts. confirmed was entering knowingly voluntarily and, finding there was factual basis plea, accepted plea. [W]here defendant raises appeal claim Rule 11 error raise court, claim reviewable only plain error. v. Torrellas , F.3d (2d Cir. 2006). [2] must demonstrate ʺ (1) error, (2) error ʹ plain, ʹ [and] (3) error prejudicially affected substantial rights. ʹʺ Id. (internal quotation marks omitted). *9 Federal Rule Criminal Procedure 11(b)(3) provides ʺ [b]efore entering judgment on plea, the must determine is factual basis the plea. ʺ Fed. R. Crim. P. 11(b)(3). The must ʺ assure itself simply the conduct which defendant admits is fact an offense under the statutory provision under which is pleading guilty. ʺ United States v. Maher, 108 F.3d 1524 (2d Cir. 1997). As long factual basis is put record, judge may look answers provided counsel defense government, presentence report, ʺ . . . whatever means is appropriate specific case. ʺ v. Smith , 160 F.3d 121 (2d Cir. 1998) (quoting Maher, 108 F.3d at 1524).
In Rosemond , S. Ct. 1240 (2014), Supreme Court clarif[ied] relationship aiding abetting statute . . . U.S.C. § 924(c) prohibition against using firearm during crime violence, ʺ instructing aiding abetting Section 924(c) offense ʺ requires both an affirmative act furthering underlying offense intent facilitate offense commission. ʺ Robinson (citing Rosemond , S. Ct. at 1245). defendant affirmative act need ʺ specifically facilitate use firearm ʺ ‐‐ rather, . . . requirement is met when defendant facilitates any element underlying offense. Id. at 200. intent requirement satisfied when has advance knowledge one confederates will carry gun. Rosemond S. Ct.
There was a sufficient factual basis for the accept s at time of the plea hearing based on admissions alone. During the hearing, admitted that (1) over course drug conspiracy, he was aware that other co ‐ conspirators possessed firearms in furtherance conspiracy; (2) he benefitted his co ‐ conspirators carrying firearms; (3) he intended other co ‐ conspirators carry possess weapons in connection with his drug business; (4) he access firearms time time; (5) firearms were kept in numerous places; (6) firearms were used protection drug business. conceded his participation in underlying narcotics conspiracy, element a Section 924(c) offense, thereby satisfying affirmative act
requirement. He also allocuted he was aware that co conspirators carried firearms connection conspiracy, benefiting protecting drug business, intended they do so. Because indicated he continued participate conspiracy knowledge co conspirators were using or carrying guns, advance knowledge requirement was met. See id. n.9 (noting advance knowledge can inferred if continues participate crime after gun displayed used confederate ). Thus, there was factual basis both affirmative act intent components aiding abetting Section 924(c) offense. government proffer its proof Count Two further supported conclusion factual basis plea.
Finally, Davis argues passing he pressured to enter due to late hour and pressure counsel, claim is conclusory and belied by record. Accordingly, we identify no error, let alone plain error, s acceptance of ʹ s plea.
B. Conflict ‐ Free Counsel also argues deprived of right to conflict free counsel, necessitating vacatur of convictions. Specifically, contends erred by (1) failing to provide independent counsel to consult regarding potential conflict (2) providing sufficient time contemplate consequences waiver.
The question whether defendant Sixth Amendment right effective assistance counsel is violated is mixed question law fact requiring de novo review. v. Kliti F.3d (2d Cir. 1998). has special duty ascertain defendant waiver is knowing intelligent. ʺ Williams Meachum (2d Cir. 1991). In Curcio, F.2d 1982), we set forth procedures be applied when is potential concern regarding defendant right representation attorney without conflict interest. to:
(i) advise defendant dangers arising particular conflict; (ii) determine through questions are likely answered narrative form whether defendant understands those risks freely chooses run them; (iii) give time digest *12 contemplate risks after encouraging him her seek advice independent counsel. v. Iorizzo, F.2d 52, (2d Cir. 1986) (citing Curcio, 680 F.2d at 888 90). In evaluating district court s fidelity this guidance, however, ʹ we are more
concerned with whether appreciated his predicament made properly informed choice than we are whether trial judge recited any particular litany of questions. ʹʺ Buissereth F.3d 114, (2d Cir. (quoting Jenkins, F.2d 167, 1991)). held Curcio hearings regarding two potential conflicts Anthony Ricco representation Davis March 2013, before plea, December sentencing. As initial matter, at each hearing, Davis waived ability argue future have effective assistance counsel due Ricco conflicts. He offers no reason ignore those waivers here.
Nevertheless, record reveals ensured fully informed potential conflicts interest involving his attorney subsequent waivers were both knowing ʺ ʺ intelligent. Williams, At each hearing, first advised problems would arise potential conflict, including hypothetical examples ways Ricco would unable zealously represent due obligations brother. As made each point, affirmatively indicated understanding.
Furthermore, district court determined through closed open ‐ ended questioning that Davis understood possible risks accepting waiver conflict. Davis ʹ s responses district court ʹ s hypotheticals demonstrated that he appreciated potential risks arising Ricco s prior representation Davis ʹ s brother. At second hearing, Davis stated that he knew that Ricco previously represented Allen, target murder hire conspiracy, ʺ [Ricco] might have found out something Mr. Allen could help [Davis] during [his] sentencing this case right here. ʺ Davis App. When explained Ricco would not able use such information help Davis, Davis responded, I understand everything. I understand. Id.
Finally, acknowledged it could predict how conflict would affect offered Davis opportunity reflect decision after consulting with independent counsel. now argues erred by appointing counsel, citing lack education sophistication, despite declining offer do so during hearing. Nothing about background indicates would have been unable appreciate seriousness decision without consulting independent counsel. See, e.g., Lussier (dismissing similar argument only eighth grade education).
Although hearings were not long, is no indication that Davis insufficient time to consider risks proceeding Ricco as his counsel. offered Davis opportunity adjourn hearing deciding to waive conflict. At each proceeding, indicated he did not wish consult counsel, and he did not wish take any additional time reflect his decision. Accordingly, we conclude err following procedures outlined Curcio either hearing, knowingly intelligently waived his right conflict free representation.
We have considered all additional arguments find them without merit. For reasons stated herein, judgments are AFFIRMED . motion bail pending appeal is DENIED moot.
FOR THE COURT: Catherine O Hagan Wolfe, Clerk
[*] Judge Brian M. Cogan District Court Eastern District New York, sitting designation.
[*] Clerk Court respectfully directed amend official caption conform above.
[1] We address accompanying opinion filed today appellant Roger Key appeal convictions.
[2] We have previously used modified plain error ʺ analysis where purported error results supervening decision. Prado F.3d (2d Cir. 2016). We need address whether plain error modified plain error analysis should apply here, however, because our conclusion would same under either approach. See Robinson n.1 2015).
[3] argued his opening brief his sentence procedurally substantively unreasonable. In agreement, however, waived right appeal sentence fewer than months ʹ imprisonment. On appeal, he does argue waiver invalid unenforceable, sentenced months ʹ imprisonment. Accordingly, we affirm sentence. See, e.g., Riggi 2011).