09-3360-cr
United States v. Boyd
                          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 THIS COURT’S LOCAL RULE 32.1.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 22nd day of October, two thousand and ten.

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
                  Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                               Appellee,
                   -v.-                                                     09-3360-cr

LORENZO BOYD, also known as LOREZO BOYD,

                                               Defendant-Appellant.



For Appellee:             Raymond A. Tierney, Assistant United States Attorney (Loretta E. Lynch,
                          United States Attorney, David C. James, Assistant United States
                          Attorney), Office of the United States Attorney, Eastern District of New
                          York, Brooklyn, NY.

For Appellant:            Gönül Aksoy and Theodore S. Green, Green & Willstatter, White Plains,
                          NY.


      Appeal from the United States District Court for the Eastern District of New York
(Cogan, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and hereby is AFFIRMED.

        Lorenzo Boyd appealed to this Court after he was convicted of being a felon in
possession of a firearm and sentenced to 96 months in prison, a $100 special assessment, and
three years of supervised release. Boyd argues that the case should be remanded to the District
Court to determine if the firearm seized at the time of his arrest should have been suppressed
from trial. Further, Boyd argues that the District Court did not properly calculate his offense
level under the Sentencing Guidelines because he contends that his prior New York convictions
for attempted third degree burglary are not “crimes of violence.” We assume the parties’
familiarity with the underlying facts, procedural history, and issues presented on appeal.

        In the district court proceedings, Boyd was represented by three attorneys. The first
attorney filed a motion to suppress the firearm seized at the time of Boyd’s arrest. The
magistrate judge, after a hearing, recommended to the District Court that it deny Boyd’s motion
to suppress. Boyd filed timely objections to this recommendation. Next, Boyd’s second attorney
took over, during which time Boyd pleaded guilty pursuant to a plea agreement. After Boyd’s
guilty plea, the District Court denied as moot Boyd’s motion to suppress. Thereafter, Boyd
sought to withdraw his guilty plea after learning that the Sentencing Guidelines range
substantially exceeded the estimate in his plea agreement. At this point, a third attorney took
over representation and the District Court granted Boyd’s motion to withdraw his guilty plea.
Boyd’s third attorney did not renew the motion to suppress before or at trial, did not notify the
District Court that he believed the motion to suppress was pending, and did not object at trial to
the admission of the seized firearm. After trial, a jury convicted Boyd of being a felon in
possession of a firearm.

        Boyd contends that the District Court was obligated to decide, sua sponte, the merits of
Boyd’s already-decided motion to suppress. He argues that when he withdrew his guilty plea,
his “motion to suppress was no longer moot and its pending status was restored by operation of
law.” Boyd cites no authority for this remarkable proposition, and we know of none. A
defendant who wants evidence suppressed must move to suppress prior to trial, and if the
defendant does not do so, the matter is waived. See Fed. R. Crim. P. 12(b)(3)(C), 12(e).
Although such a waiver may be excused if the defendant shows “good cause,” Fed. R. Crim. P.
12(e), it was not the province of the District Court to assume that Boyd wished to renew the
motion, absent any indication from Boyd’s attorneys. As the motion did not implicate the
District Court’s subject matter jurisdiction, and Boyd was not obligated to pursue the matter, the
District Court had no duty to revive the motion sua sponte.

       By denying as moot Boyd’s motion to suppress, the District Court did not “defer” the
motion under Federal Rule of Criminal Procedure 12(d) but “decide[d]” the motion. After Boyd
was allowed to withdraw his guilty plea, it was his responsibility to renew his motion to
suppress, assuming he still desired to have the evidence suppressed. Boyd’s counsel never
argued to the District Court that he believed the motion to suppress remained pending. Indeed,
counsel’s failure to object at trial to the introduction of the firearm in evidence was entirely
consistent with an understanding that the motion to suppress was not pending and presented no
open issues. As Boyd did not argue in the District Court that the court had an obligation to sua
sponte revive and address Boyd’s previously-rejected motion, his present argument is reviewable

                                                2
only for plain error. To meet that standard, a defendant must show that there was, inter alia, “(1)
‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Johnson v. United States,

, 466-67 (1997) (quoting United States v. Olano, 

, 732 (1993)). The
District Court did not commit any error, much less plain error, in not reviving the motion sua
sponte.

        Even if the District Court had been required sua sponte to revive Boyd’s suppression
motion and rule on its merits, Boyd cannot show that the District Court’s failure to do so was
plain error. After the suppression hearing, the magistrate judge issued a report recommending
that the District Court deny the suppression motion. Boyd objected to the report in full. Based
on our review of the record, the District Court, after a de novo review, would have allowed the
evidence to be admitted, finding that the officers had probable cause to arrest Boyd and entered
Boyd’s apartment without a warrant due to exigent circumstances. Therefore, any error in sua
sponte failing to consider the previously-rejected motion did not affect Boyd’s substantial rights.

         Nor did the District Court err in enhancing Boyd’s base offense level pursuant to
Sentencing Guidelines Section 2K2.1(a)(1), after finding that Boyd’s two convictions for the
New York crime of attempted third degree burglary are “crimes of violence.” This Court already
has decided the issue. We ruled that the term “crimes of violence,” defined in Sentencing
Guidelines Section 4B1.2(a)(2), includes the New York crimes of third degree burglary, see
United States v. Brown, 

, 268-69 (2d Cir. 2008), and attempted third degree
burglary, see United States v. Hurell, 

, 124 (2d Cir. 2009), cert. denied, 

, 62, 64 (2009); United States v. Ortiz, – F.3d –, No. 08-2648-cr, 

, at *2 (2d
Cir. Sept. 1, 2010). Boyd, although he did not raise the issue below, asks this Court to overrule
Brown in light of Begay v. United States, 

(2008) (holding that New Mexico’s
felony offense of driving under the influence of alcohol was not a “crime of violence” under the
Armed Career Criminal Act). We view the Begay decision as inapplicable to the New York
crime of attempted third degree burglary, and after Begay we have continued to follow the
decision in Brown. Accordingly, Boyd cannot show that the District Court committed an error
that is “clear under current law,” as the plain error rule requires. United States v. Olano, 

, 734 (1993).

       We have considered all of Boyd’s contentions on this appeal and have found them to be
without merit. For the foregoing reasons, we AFFIRM the District Court’s judgment.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                 3