United States v. Nourse, No. 12-1268 (2d Cir. 2013)
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Defendant appealed his sentence stemming from his conviction of conspiracy to distribute and possess with the intent to distribute more than 100 kilograms of marijuana. Although the district court expressed the terms of the waiver imperfectly, the objection was unpreserved. Under the circumstances, the court concluded that defendant made a knowing and voluntary appeal waiver and, under this standard, failed to establish plain error. Accordingly, the court affirmed the judgment and did not reach the merits of his argument.
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12-1268-cr United States v. Nourse 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: April 19, 2013 Decided: July 16, 2013) Docket No. 12-1268 - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.Michael Cook, Sean Herrmann, AKA Vinny, Scott Power, Marcel Malachowski, AKA Sealed Defendant 4, AKA Memo, Selena Hopper, AKA Sealed Defendant 2, AKA Sealed Defendant 5, Lee Tarbell, AKA Sealed Defendant 6, AKA Sleeman, June Jacobs, AKA Sealed Defendant 7, AKA Punk, John Jacobs, AKA Sealed Defendant 8, AKA Wadd, Bryan Cole, AKA Sealed Defendant 9, AKA Buckwheat, Jacquis Harris, AKA Sealed Defendant 7, AKA Sealed Defendant 10, Owen Peters, AKA Sealed Defendant 11, AKA Weezy, Brandon Benedict, AKA Sealed Defendant 12, David Herrmann, AKA Sealed Defendant 13, Adam Fender, AKA Sealed Defendant 14, AKA The Electrician, Jonas Cavallo, AKA Sealed Defendant 15, AKA The Carpenter, Armande Millhouse, AKA Sealed Defendant 16, AKA Beatlejuice, AKA Milly, Jeffrey Baroni, AKA Sealed Defendant 18, Jason Tackus, AKA Sealed Defendant 19, Joshua Brown, AKA Sealed Defendant 20, Sean Canty, AKA Sealed Defendant 21, Aaron Freyder, AKA Sealed Defendant 22, Dominick Stone, AKA Sealed Defendant 23, Defendants, ANDREW NOURSE, AKA Sealed Defendant 17, AKA The Jeweler, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x 1 2 3 4 Before: JACOBS, Chief Judge, POOLER and WESLEY, Circuit Judges. Andrew Nourse appeals from his sentence of 60 months 5 imprisonment for conspiracy to distribute and possess with 6 the intent to distribute more than a 100 kilograms of 7 marijuana, entered in the United States District Court for 8 the Northern District of New York (Kahn, J.). 9 a ruling on criminal history; but to press that argument, He challenges 10 Nourse must overcome an appeal waiver. 11 district court expressed the terms of the waiver 12 imperfectly, the objection was unpreserved. 13 plain error is the standard of review for an unpreserved 14 challenge to an appeal waiver, and that Nourse has not 15 sustained his burden. 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Although the We hold that Affirmed. BRENDA K. SANNES (Terrence M. Kelly, on the brief) for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee. DEVIN MCLAUGHLIN, Langrock Sperry & Wool, LLP, Middlebury, VT, for Defendant-Appellant. DENNIS JACOBS, Chief Judge: Andrew Nourse appeals from his 60-month sentence, entered in the United States District Court for the Northern 2 1 District of New York (Kahn, J.), for conspiracy to 2 distribute and possess with the intent to distribute more 3 than a 100 kilograms of marijuana. 4 on criminal history; but to press that argument, Nourse must 5 overcome an appeal waiver. 6 expressed the terms of the waiver imperfectly, the objection 7 was unpreserved. 8 of review for an unpreserved challenge to an appeal waiver, 9 and that Nourse has not sustained his burden. He challenges a ruling Although the district court We hold that plain error is the standard Affirmed. 10 11 12 I Andrew Nourse was a driver for an Albany drug 13 distribution ring that operated in 2008-09. 14 arrest in 2011, Nourse entered a plea agreement consenting 15 to the charge of conspiracy to distribute and possess with 16 the intent to distribute more than 100 kilograms of 17 marijuana. 18 least 100 kilograms but less than 400 kilograms of 19 marijuana. 20 After his He stipulated that he was accountable for at Plea Agreement at 7, ECF No. 389. Nourse s plea agreement recites that he consulted with 21 counsel, fully underst[ood] the extent of his rights to 22 appeal and waive[d] any and all rights, including those 3 1 conferred by l8 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to 2 appeal or collaterally attack his conviction and any 3 sentence of imprisonment of 60 months or less . . . . 4 Agreement at 12 (emphasis added). 5 Plea During the change of plea colloquy, the district court 6 reviewed Nourse s plea agreement with him, touching as 7 follows on the appeal waiver: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 THE COURT: Is there a waiver of any appeal rights in the plea agreement? MR. KELLY: Yes, your Honor. The defendant waives his right to appeal and to collaterally attack his conviction. He preserves the right to appeal the reasonableness of the sentence in excess of 60 months. THE COURT: Is that correct, Mr. Kindlon? MR. KINDLON: Yes, your Honor, it is. THE COURT: Do you understand that too, Mr. Nourse? THE DEFENDANT: I do. Change of Plea Hr g Tr. at 14-15, ECF No. 550. The presentence investigation report ( PSR ) assigned 22 Nourse three criminal history points based on three 23 proceedings in Massachusetts state court, each of which was 24 continued without a finding. Presentence Report 25 ( PSR ) ¶¶ 31-33, ECF No. 432. A continuance without a 26 finding is a mechanism in the Massachusetts courts that 27 permits charges to be dismissed on a date certain if the 28 defendant complies with negotiated terms or probation. 4 See 1 2 Mass. Gen. Laws ch. 278, § 18.1 In the first proceeding, Nourse was charged with 3 operating a motor vehicle under the influence of liquor, 4 operating an unregistered motor vehicle, and marked lane 5 violations in the district court in Hingham. 6 the second, he was charged with possession of marijuana in 7 Boston. 8 operating a motor vehicle with a suspended license, 9 operating an unregistered vehicle, and possession of Id. ¶ 32. PSR ¶ 31. In In the third, he was charged with 10 marijuana, in Framingham. 11 continued without a finding, apparently in exchange for a 12 probationary agreement. Id. ¶ 33. 1 Each case was A defendant who is before the Boston municipal court or a district court or a district court sitting in a juvenile session or a juvenile court on a criminal offense within the court s final jurisdiction shall plead not guilty or guilty, or with the consent of the court, nolo contendere. Such plea of guilty shall be submitted by the defendant and acted upon by the court; provided, however, that a defendant with whom the commonwealth cannot reach agreement for a recommended disposition shall be allowed to tender a plea of guilty together with a request for a specific disposition. Such request may include any disposition or dispositional terms within the court s jurisdiction, including, unless otherwise prohibited by law, a dispositional request that a guilty finding not be entered, but rather the case be continued without a finding to a specific date thereupon to be dismissed, such continuance conditioned upon compliance with specific terms and conditions or that the defendant be placed on probation pursuant to the provisions of [chapter 276, § 87]. Mass. Gen. Laws ch. 278, § 18. 5 1 Nourse argued at the February 2012 sentencing hearing 2 that these prior offenses should not affect his criminal 3 history. 4 referencing a First Circuit opinion holding that a 5 Massachusetts continuance without a finding could be 6 considered for the purpose of criminal history. 7 Hr g Tr. at 5-6, ECF No. 514. 8 also suggested that it was an interesting issue for appeal, 9 if [Nourse s counsel] is so inclined; I don t think our The district court rejected the argument, Sentencing However, the district court 10 Second Circuit has ruled on it at all. 11 court proceeded to sentence Nourse to 60 months 12 imprisonment, the statutory mandatory minimum. Id. at 5. The Id. at 6. 13 14 15 II Before accepting a guilty plea, Federal Rule of 16 Criminal Procedure 11(b)(1)(N) requires that the court 17 inform the defendant of, and determine that the defendant 18 understands . . . the terms of any plea-agreement provision 19 waiving the right to appeal or to collaterally attack the 20 sentence. 21 dispute the proper standard of review for Nourse s claim 22 that the district court failed to comply with the Rule. Fed. R. Crim. P. 11(b)(1)(N). 6 The parties 1 A circuit split over how to evaluate Rule 11 errors was 2 resolved in United States v. Vonn, 535 U.S. 55, 58-59 3 (2002). 4 objection in district court and wishes to amend his guilty 5 plea on appeal must show plain error. 6 other circuits have applied plain error to appeals arising 7 under Rule 11(b)(1)(N) specifically. 8 Borrero-Acevedo, 533 F.3d 11, 13 (1st Cir. 2008) (joining 9 the other circuits to have considered the question and A defendant who has not preserved a Rule 11 Id. After Vonn, See United States v. 10 hold[ing] that the plain error standard applies to 11 unpreserved claims of violations of Fed. R. Crim. P. 12 11(b)(1)(N) ) (citing United States v. Murdock, 398 F.3d 13 491, 496 (6th Cir. 2005) and United States v. 14 Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004)); see 15 also United States v. Sura, 511 F.3d 654, 662 (7th Cir. 16 2007); United States v. Edgar, 348 F.3d 867, 873 (10th Cir. 17 2003). 18 review for unpreserved challenges under subsection 19 (b)(1)(N), Nourse suggests that they should be considered 20 under some different standard. 21 22 Because we have not expressly stated the standard of We disagree. Nourse argues that this Court has refrained from imposing a plain error standard in this context. 7 Instead, 1 he advocates for the test set out in United States v. Ready, 2 which asks whether the record clearly demonstrates that 3 the waiver was both knowing (in the sense that the defendant 4 fully understood the potential consequences of his waiver) 5 and voluntary. 6 omitted). 7 82 F.3d 551, 557 (2d Cir. 1996) (citation Ready was decided three years before the 1999 adoption 8 of Rule 11(b)(1)(N), and six years before Vonn. 9 cites other of our cases in which plain error was not Nourse 10 applied as the standard; but they also pre-date one or both 11 of Rule 11(b)(1)(N) and Vonn. 12 214 F.3d 365, 368 (2d Cir. 2000); United States v. 13 Martinez-Rios, 143 F.3d 662, 668 (2d Cir. 1998); United. 14 States v. Chen, 127 F.3d 286, 289-90 (2d Cir. 1997). 15 event, Ready s knowing and voluntary test is not at all 16 inconsistent with plain error review: Rule 11 is designed 17 to assist district courts in ensuring that a defendant s 18 guilty plea is knowing and voluntary. 19 Mercado, 349 F.3d 708, 211 (2d Cir. 2003) (emphasis added). 20 See United States v. Tang, In any United States v. We are bound by Vonn, which governs all Rule 11 21 appeals, subsection (b)(1)(N) included. 22 principle is that Rule 11 violations that are not objected 8 The general 1 to at the time of the plea are subject to plain error review 2 under Rule 52(b) of the Federal Rules of Criminal 3 Procedure. 4 Cir. 2012) (citing Vonn, 535 U.S. at 62-63). 5 been applied to subsections other than (b)(1)(N), see, e.g., 6 United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) 7 (using plain error review in the context of a Rule 8 11(b)(1)(K) appeal), and it applies here as well. 9 United States v. Youngs, 687 F.3d 56, 59 (2d That rule has Plain error review facilitates (and protects) judicial 10 efficiency. 11 to bring Rule 11 errors to a district court s attention, a 12 consideration that is equally salient for subsection 13 (b)(1)(N). 14 Vonn, 535 U.S. at 73). 15 considerations of efficiency and finality; prosecutors make 16 various accommodations in plea deals in exchange for the 17 certainty that they will not have to spend resources 18 litigating appeals down the line. 19 Without it, litigants would have little reason See Borrero-Acevedo, 533 F.3d at 15-16 (citing Appellate waivers advance powerful Accordingly, we apply plain error review to Nourse s 20 unpreserved Rule 11(b)(1)(N) challenge. 21 requires a defendant to demonstrate that (1) there was 22 error, (2) the error was plain, (3) the error prejudicially 9 Plain error review 1 affected his substantial rights, and (4) the error seriously 2 affected the fairness, integrity or public reputation of 3 judicial proceedings. . . . Additionally, to show that a 4 Rule 11 violation was plain error, the defendant must 5 demonstrate that there is a reasonable probability that, but 6 for the error, he would not have entered the plea. 7 687 F.3d at 59 (internal quotations omitted). Youngs, 8 9 III 10 Nourse challenges the appeal waiver on two grounds: 11 that the judge failed to advise him of the heart of the 12 appeal waiver; and that the advice given was undermined by 13 the judge s observation that the issue of Massachusetts law 14 bearing on criminal history was ambiguous and ripe for an 15 appeal to the Second Circuit. 16 persuasive; Nourse fails to demonstrate that any error 17 existed, or that absent the error he would not have entered 18 the plea. 19 Neither argument is Nourse argues that the judge never informed [him] that 20 he was waiving the right to appeal a sentence of 60 months 21 or less. 22 this error in the district court, where it could have been Nourse Br. at 10. Because Nourse did not raise 10 1 promptly sorted out, his argument is reviewed for plain 2 error. 3 See Vonn, 535 U.S. at 62-63. The court explicitly asked Nourse about the appellate 4 waiver, and Nourse confirmed that he consented to it. 5 exchange was perfectly lucid and understandable. 6 The Nourse argues that the prosecutor s expression of the 7 waiver did not state by necessary implication that [Nourse] 8 could not appeal a sentence of less than 60 months. 9 Br. at 11. Nourse But no negative pregnant suggested that he 10 could. 11 to appeal, but preserved his right to appeal a sentence in 12 excess of 60 months. 13 the second is understood as a carve-out; i.e., there is a 14 general waiver except for a sentence that exceeds 60 months. 15 Since, under the circumstances, there was no realistic 16 possibility that [the defendant] might have misunderstood 17 the nature or source of the waiver, the district court 18 properly addressed the waiver provision during the plea 19 colloquy. 20 Cir. 2004). 21 22 The prosecutor stated that Nourse waived his right The first point makes sense only if United States v. Morgan, 386 F.3d 376, 379 (2d Nourse cites as an analog, United States v. Smith, 618 F.3d 657, 664-65 (7th Cir. 2010), in which the district 11 1 court asked the public defender whether there was a plea 2 waiver and elicited the response, everything is waived with 3 the exception of the reasonableness of the 4 sentence . . . [a]nd he can t withdraw his plea. 5 565. 6 that? and the defendant said he did. 7 Circuit held that this exchange did not comport with the 8 requirements of Rule 11(b)(1)(N) because the judge had not 9 adequately explained to the defendant the substance of the The judge asked the defendant, [y]ou understand Id. The Seventh 10 waiver. 11 of the plea rather than the appeal waiver itself. 12 Id. at Id. The judge s inquiries focused on the finality There is no such ambiguity here. Id. The relevant exchange 13 among the judge, the prosecutor, Nourse s counsel, and 14 Nourse himself referenced only the appeal waiver. 15 logical understanding of Nourse s response is that, except 16 for a retained right to appeal the reasonableness of [a] 17 sentence in excess of 60 months, he understood that he was 18 waiving altogether his right to appeal and to collaterally 19 attack his conviction. 20 The most Change of Plea Hr g Tr. at 14. Nourse contends that the appeal waiver was at least 21 impaired when the district court suggested a Second Circuit 22 appeal on the issue of Massachusetts law. 12 However, an 1 otherwise enforceable waiver of appellate rights is not 2 rendered ineffective by a district judge s post-sentencing 3 advice suggesting, or even stating, that the defendant may 4 appeal. 5 Cir. 2000). 6 sentencing, not at the plea colloquy, so it does not speak 7 to whether Nourse s appellate waiver was knowing and 8 voluntary. 9 district judge s advice concerning appellate rights might 10 weigh in favor of construing an ambiguous waiver not to be 11 enforceable. 12 explained supra, the waiver here was not at all ambiguous. 13 United States v. Fisher, 232 F.3d 301, 304 (2d The district court s stray comment occurred at Nourse relies on a proviso in Fisher that [a] Id. at 304 n.2. But for the reasons In sum, Nourse made a knowing and voluntary waiver. 14 therefore has not established a Rule 11(b)(1)(N) error to 15 He satisfy the first step of the plain error test. 16 Nourse also fails to establish plain error for a 17 second, alternative reason: he has not shown a reasonable 18 probability that, but for the error, he would not have 19 entered the plea. 20 admits that he does not want to withdraw his plea. 21 Br. at 14 ( Unlike most Rule 11 challenges, where the 22 defendant is seeking to withdraw his plea, Mr. Nourse is Youngs, 687 F.3d at 59. 13 In fact, Nourse Nourse 1 merely seeking the opportunity to be heard on appeal as to 2 the sentence he claims is illegal. ). 3 4 Because Nourse s appeal waiver is binding, we need not reach the merits of his argument under Massachusetts law. 5 6 For the foregoing reasons, we affirm. 14
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