United States v. Gil-Guerrero

• Decision Date: 21 December 2018
• Docket Number: 17-773-cr
• Parties: UNITED STATES OF AMERICA, Appellee, v. BORIS GIL-GUERRERO, Defendant-Appellant, and JULIO SANTANA JOSEPH, FRANCISCO RUBIO MONTALVO, ANGEL PEREZ AVILES, DEIVY BURGOS FELIX, CHENGY PADILLA GARO, GUERY GUZMAN ROSA, DANTE CAMINERO VASQUEZ, SAUL HERNANDEZ BATISTA, MOISES DE LA CRUZ DECENA, CELSO MIGUEL SARITA, EDWARD CUEVAS ESCANO, SANTIAGO GUZMAN GONZALEZ, JOSE ARISMENDY CUESTA ABREU, CARLOS PERDONO RISARIO, ELINSON REYES ALMONTE, YEURY AMARANTE ROSARIO, MARIO ANTONIO PLACIDO, YGNACIO ESTEVEZ MESSON, VICTOR VELASQUEZ ROCHTTIS, RAFAELA MEDINA, AKA CAROLINA, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

UNITED STATES OF AMERICA, Appellee, v. BORIS GIL-GUERRERO, Defendant-Appellant,andJULIO SANTANA JOSEPH, FRANCISCO RUBIO MONTALVO, ANGEL PEREZ AVILES,DEIVY BURGOS FELIX, CHENGY PADILLA GARO, GUERY GUZMAN ROSA,DANTE CAMINERO VASQUEZ, SAUL HERNANDEZ BATISTA,MOISES DE LA CRUZ DECENA, CELSO MIGUEL SARITA, EDWARD CUEVAS ESCANO,SANTIAGO GUZMAN GONZALEZ, JOSE ARISMENDY CUESTA ABREU,CARLOS PERDONO RISARIO, ELINSON REYES ALMONTE, YEURY AMARANTE ROSARIO,MARIO ANTONIO PLACIDO, YGNACIO ESTEVEZ MESSON, VICTOR VELASQUEZ ROCHTTIS,RAFAELA MEDINA, AKA CAROLINA, Defendants.^*

17-773-cr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

December 21, 2018

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 December, two thousand eighteen.

PRESENT: JOSÉ A. CABRANES, ROSEMARY S. POOLER, CHRISTOPHER F. DRONEY, Circuit Judges.

FOR DEFENDANT-APPELLANT:

STEPHANIE CARVLIN, New York, NY.

FOR APPELLEE:

ALEX ROSSMILLER, Assistant United States Attorney (Daniel B. Tehrani, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney, Southern District of New York, New York, NY.

Appeal from a March 16, 2017 judgment of the United States District Court for the Southern District of New York (Paul A. Crotty, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is AFFIRMED, except to the extent that we VACATE AND REMAND the cause to the District Court with instructions to modify the forfeiture order.

Defendant Boris Gil-Guerrero ("Gil-Guerrero") appeals from a judgment convicting him, following a guilty plea, of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951; conspiracy to impersonate federal officers, in violation of 18 U.S.C. § 371; and conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. On September 23, 2016, Gil-Guerrero filed a motion to withdraw his guilty plea, which the District Court denied. On March 16, 2017, the District Court sentenced Gil-Guerrero to fifty months' imprisonment, imposed a $300 mandatory special assessment, and ordered restitution of $860,511.88, jointly and severally, against Gil-Guerrero andhis co-defendants. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

I.

Gil-Guerrero first argues that the District Court violated Rule 11(b)(2),¹ Fed. R. Crim. P., by failing to adequately determine whether his plea was voluntary. Where a defendant raises a Rule 11 violation in the district court—by objection during the plea proceeding or by motion to withdraw a guilty plea—we review for harmless error. United States v. Yang Chia Tien, 720 F.3d 464, 469 (2d Cir. 2013); cf. United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) ("Where a defendant never sought to withdraw his plea, and did not object at any time or in any way to the alleged Rule 11 violation in the district court, we review his claims on appeal for plain error." (internal quotation marks and brackets omitted)). The Government bears the burden of proving the error was harmless beyond a reasonable doubt. Yang Chia Tien, 720 F.3d at 469. "In demonstrating harmless error, it is not enough to negate an effect on the outcome of the case." Id. (internal quotation marks omitted).

Gil-Guerrero does not assert that his plea was coerced or that it was the product of mistake or misunderstanding. Rather, he argues that the District Court's standard allocution regarding voluntariness was inadequate in light of the Government's Rule 16 violation.² According to Gil-Guerrero, the District Court should have further probed the circumstances underlying his decision to plead guilty. For example, the District Court could have specifically referenced the late disclosure during its plea colloquy. Additionally, the District Court could have explicitly asked Gil-Guerrero whether his plea was "voluntary" even though it had already asked if "anybody made any threats or promises to you, Mr. Gil Guerrero, to induce you to plead guilty?" App. 383.

Having conducted a de novo review of the record, we conclude that while a more thorough colloquy might have been helpful, it is nevertheless clear that Gil-Guerrero's plea was entered voluntarily. Before accepting a plea of guilty, a district court must "determine whether the defendant understands the nature of the charge against him and whether he is aware of the consequences of his plea." United States v. Rossillo, 853 F.2d 1062, 1064 (2d Cir. 1988) (internal quotation marks omitted). "The district court must satisfy itself that the defendant is offering the plea voluntarily and that he is competent to understand the nature of the charge, his constitutional rights, and the scope of the penalty provided by law." Id. (internal quotation marks omitted). A plea is deemed "voluntary" if it is "not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally." United States v. Juncal, 245 F.3d 166, 172 (2d Cir. 2001) (quoting Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988)).

Here, the District Court firmly established during its plea colloquy that Gil-Guerrero understood the charges and the effect of the plea, that he was competent to enter the plea, that he understood that he could plead not guilty, and that no threats or promises had been made to induce him to plead guilty. App. 376-83. The District Court also confirmed that Gil-Guerrero had helped prepare his plea statement. App. 388. The record further reflects that Gil-Guerrero actively participated in the plea proceeding. For example, when asked whether he understood the Sentencing Guidelines offense level as set forth in the Government's Pimentel letter,³ Gil-Guerrero responded: "I don't agree with him, but I do understand." App. 381. Similarly, when asked if his Criminal History Category was accurate, Gil-Guerrero replied, "I also don't agree with that, as well . . . . [T]hey got offenses there that are way past the time frame," before confirming the accuracy of the convictions included in the Pimentel letter. App. 381. Finally, Gil-Guerrero corrected the District Court during its colloquy on potential immigration consequences, reminding the District Court that he had already once been deported from the United States. App. 382-83.

Gil-Guerrero's unequivocal statements affirming the voluntariness of his plea, coupled with his active engagement during the plea proceeding, confirm that he was able to weigh his options rationally and that his guilty plea was not the product of actual or physical harm or mental coercion. As Gil-Guerrero's counsel conceded during oral argument, the fact that the District Court did not specifically use the word "voluntary" during its colloquy does not render an otherwise voluntary plea involuntary. See, e.g., United States v. Ramos-Mejia, 721 F.3d 12, 15 (1st Cir. 2013) ("In order to satisfy Rule 11, the district court need not employ a specific script, a set of magic words, or even certain types of inquiries."(internal quotation marks omitted)); cf. United States v. Sindima, 488 F.3d 81, 85 (2dCir. 2007) (holding, with respect to the requirement under 18 U.S.C. § 3553(c) that district courts articulate their reasons for imposing a particular sentence, that "we do not require district courts to engage in the utterance of 'robotic incantations' when imposing sentences."). Accordingly, we conclude that the District Court did not violate Rule 11(b)(2) during the plea proceeding.

II.

Gil-Guerrero further argues that the District Court "abused its discretion" in denying his motion to withdraw his guilty plea because his plea was not made voluntarily. Under Rule 11, a district court may allow a defendant to withdraw his guilty plea only if the defendant can show a "fair and just reason for requesting the withdrawal." United States v. Rose, 891 F.3d 82, 85 (2d Cir. 2018) (internal quotation marks omitted). To determine whether a defendant has met this burden, a court should consider:

(1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just); and (3) whether the government would be prejudiced by a withdrawal of the plea.

Id. (internal quotation marks omitted). "Courts may also look to whether the defendant has raised a significant question about the voluntariness of the original plea." United States v. Rivernider, 828 F.3d 91, 104 (2d Cir. 2016) (quoting United States v. Schmidt, 373 F.3d 100, 103 (2d Cir. 2004)). "The standard for withdrawing a guilty plea is stringent because society has a strong interest in the finality of guilty pleas." Rose, 891 F.3d at 85 (quoting Schmidt, 373 F.3d at 103). Allowing withdrawal of guilty pleas "not only undermines confidence in the integrity of our judicial procedures, but also increases the volume of judicial work, and delays and impairs the orderly administration of justice." Id. (quoting Schmidt, 373 F.3d at 103).

"We review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion and any findings of fact in connection with...