Opinion
No. 05-5560-cr.
October 4, 2007.
Appeal from the United States District Court for the Southern District of New York (Baer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
APPEARING FOR APPELLANT: MITCHELL S. KESSLER, Cohoes, New York. APPEARING FOR APPELLEES: BENJAMIN GRUENSTEIN, Assistant United States Attorney (Celeste L. Koeleveld, Assistant United States Attorney on the brief),for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. PIERRE N. LEVAL, HON. SONIA SOTOMAYOR, Circuit Judges.
Angel Garcia was convicted of conspiracy to commit robbery in violation of 18 U.S.C. § 1951, and using a firearm during and in relation to a robbery in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (ii). He was sentenced principally to 142 months' imprisonment and ordered to make restitution in the amount of $4,750. On appeal, Garcia argues that: [1] defense counsel rendered ineffective assistance in negotiating his plea agreement; and [2] the district court erred in failing to advise him at the time of the plea, as required by Federal Rule of Criminal Procedure 11(b)(1)(K), of the court's authority to order restitution. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
Ineffective Assistance. Garcia successfully moved to withdraw his first guilty plea on the gun offense asserting that his counsel advised him to do so because she had identified deficiencies in his plea allocution and possible defenses to the charge. According to Garcia, this advice amounted to ineffective assistance because the government thereafter brought additional charges that resulted in a higher sentence. To overturn his conviction on these grounds, Garcia must show that counsel's conduct "fell below an objective standard of reasonableness" under "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 688 (1984). If this showing is made, appellant must also prove that there is a "reasonable probability" that absent counsel's error, the outcome of the proceeding would have been different. Id. at 694.
Although it is often preferable that ineffectiveness claims be made in the first instance to the district court, we will consider them on direct appeal when (as here) "their `resolution is beyond any doubt or to do so would be in the interest of justice.'" United States v. Stantini, 85 F.3d 9, 20 (2d Cir. 1996) (quoting United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990)) (additional quotation marks and citation omitted). Evaluating counsel's conduct from her "perspective at the time,"Strickland, 466 U.S. at 689, the record on appeal does not support a finding that it was unreasonable for her to advocate withdrawal of the guilty plea on the gun charge in view of the potential meritorious defenses and the possibility of negotiating a second plea that might exclude the gun charge. Based on the record on appeal, counsel's advice was not inaccurate or mistaken, but rather a strategic choice of the type we have considered "virtually unchallengeable."U.S. v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting Strickland, 466 U.S. at 690-91 (emphasis added)). The record, however, does not reveal what advice, if any, counsel gave to Garcia concerning the possible outcomes of withdrawing his plea. Accordingly, we reject Garcia's claim of ineffective assistance of counsel only to the extent raised on this appeal. Rule 11(b). Because Garcia objects to the adequacy of the plea allocution for the first time on appeal, our review is for plain error. United States v. Vonn, 535 U.S. 55, 62 (2002). Although the plea colloquy was deficient under Rule 11(b), the court's failure to advise about restitution was not plain error because it did not affect Garcia's substantial rights. See United States v. Gordon, 291 F.3d 181, 191 (2d Cir. 2002). Garcia has not shown "a reasonable probability that, but for the error, he would not have entered the plea." United States V. Dominguez Benitez, 542 U.S. 74, 83 (2004); see United States v. Wescott, 159 F.3d 107, 113 (2d Cir. 1998). Garcia was given multiple explicit warnings of financial penalty in connection with his plea, including provisions in both plea agreements that restitution was mandatory, the government's announcement at both plea hearings that the maximum fine was $250,000, and the court's statement at the second plea hearing about impairments to his employment opportunities. 3
To the extent Garcia believes that he has a claim for ineffective assistance of counsel based on facts that are not part of the record on appeal, our ruling does not preclude Garcia from raising a claim based on those additional facts by motion for a writ of habeas corpus under 28 U.S.C. § 2255.
When restitution was imposed at the sentencing hearing, Garcia made no move to withdraw his plea; as his counsel observed, the offenses involved "minor amounts of money." This case is not materially distinguishable from United States v. Vaval, 404 F.3d 144, 151-52 (2d Cir. 2005), in which we denied relief under substantially similar circumstances.
Finding no merit in Garcia's remaining arguments, we hereby AFFIRM the judgment of the district court.