09-4439-cr
     USA v. Porbeni
                                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 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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 2nd day of November, two thousand ten.
 4
 5   PRESENT:         DEBRA ANN LIVINGSTON
 6                    DENNY CHIN,
 7                                    Circuit Judges,
 8                    DAVID G. LARIMER,
 9                                    District Judge.*
10
11
12   UNITED STATES OF AMERICA,
13             Appellee,
14
15           -v.-                                               No. 09-4439-cr
16
17   PREZIDOR PORBENI,
18             Defendant,
19
20   TARE PORBENI, also known as Teresa Cole, also known as Aisha James,
21             Defendant-Appellant.
22
23
24                                    COLLEEN P. CASSIDY, Federal Defenders of New York, Inc., New
25                                    York, New York, for Defendant-Appellant.
26
27                                    BRIAN R. BLAIS, Assistant United States Attorney (Michael A.
28                                    Levy, Assistant United States Attorney, on the brief), for Preet
29                                    Bharara, United States Attorney, Southern District of New York,
30                                    New York, New York, for Appellee.


             *
              The Honorable David G. Larimer, of the United States District Court for the Western
     District of New York, sitting by designation.
 1           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3           Defendant-Appellant Tare Porbeni (“Porbeni”) appeals from an October 15, 2009 judgment

 4   of the United States District Court for the Southern District of New York (Daniels, J.), convicting

 5   her, upon her guilty plea, of one count of conspiring to make false statements in loan applications

 6   and to commit identity theft, in violation of 18 U.S.C. § 371, three counts of making false statements

 7   in a loan application, in violation of 18 U.S.C. § 1014, and three counts of transferring, possessing,

 8   and using a means of identification of another person with the intent to commit unlawful activity,

 9   in violation of 18 U.S.C. § 1028(a)(7) and (c)(3), and sentencing her to five months’ imprisonment,

10   followed by three years’ supervised release, five months of which were to be served on home

11   confinement, as well as forfeiture of $7,500, restitution of $39,500, and a $700 special assessment.

12   We assume the parties’ familiarity with the underlying facts and procedural history of the case.

13           Porbeni’s sole argument on appeal is that the district court erred in failing to advise her on

14   the record at her guilty plea allocution that she was subject to a restitution penalty. See Fed. R.

15   Crim. P. 11(b)(1)(K) (requiring a district court to “inform the defendant of, and determine that the

16   defendant understands, . . . the court’s authority to order restitution”). Porbeni argues that, since she

17   was not advised of the potential for restitution by the district court during the plea colloquy, her

18   restitution order should be vacated or, in the alternative, she should be permitted to withdraw her

19   guilty plea. As Porbeni concedes, however, neither she nor her trial counsel objected to the

20   Probation Department’s recommendation of restitution in the presentence report or to the imposition

21   of restitution at the time of sentencing. Accordingly, we review Porbeni’s challenge to the

22   restitution order for plain error, and find none. See United States v. Flaharty, 

, 195 (2d

23   Cir. 2002) (explaining that plain error review requires a defendant to demonstrate, inter alia, “that

24   (1) there was error, (2) the error was ‘plain,’ [and] (3) the error prejudicially affected his ‘substantial


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 1   rights’” (quoting United States v. Olano, 

, 732 (1993))).

 2          As an initial matter, there is no dispute that the district court was statutorily empowered to

 3   order the restitution at issue. Although the district court did not inform Porbeni about the restitution

 4   penalty prior to accepting her plea, Porbeni must, in order to demonstrate plain error, show “a

 5   reasonable probability that, but for the error, [s]he would not have entered the plea.” United States

 6   v. Dominguez Benitez, 

, 83 (2004); accord United States v. Vaval, 

, 151 &

 7   n.3 (2d Cir. 2005). Porbeni has failed to satisfy this burden. First, contrary to her assertion on

 8   appeal, Porbeni’s plea agreement did, in fact, inform her of the district court’s duty to order

 9   restitution. The Probation Department’s presentence report, moreover, recommended that Porbeni

10   be required to pay restitution in the amount of $39,500, as required under 18 U.S.C. §§ 3663A and

11   3664. Prior to sentencing, Porbeni’s counsel confirmed that she had reviewed the presentence report

12   with Porbeni, and that there were no objections. Finally, the district court informed Porbeni that her

13   guilty plea would subject her to a potential fine of up to $4,000,000. Cf. 

.

14   When a defendant, prior to sentencing, “learns of information erroneously omitted in violation of

15   Rule 11 but fails to attempt to withdraw h[er] plea based on that violation, there can be no

16   reasonable probability that, but for the [Rule 11 violation], [s]he would not have entered the plea.”

17   

in original) (internal quotation marks omitted). Accordingly, in light of the

18   record before us, we cannot conclude that there is a reasonable probability that Porbeni would not

19   have pleaded guilty if the district court had informed her about the restitution penalty prior to

20   accepting her plea.    We have considered all of Porbeni’s remaining arguments and find them to

21   be without merit.     For the foregoing reasons, the judgment of the district court is hereby

22   AFFIRMED.

23
24                                                          FOR THE COURT:
25                                                          Catherine O’Hagan Wolfe, Clerk
26
27
28


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