10-0743-cr
United States v. Desrosier


                   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 .


          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 23rd day of June, two thousand eleven.

PRESENT:    BARRINGTON D. PARKER,
            DENNY CHIN,
                           Circuit Judges,

            EDWARD R. KORMAN,
                           District Judge*

- - - - - - - - - - - - - - - - - - - -x

UNITED STATES OF AMERICA,
          Appellee,

            -v.-                                       10-0743-cr
PATRICK DESROSIER,
          Defendant-Appellant.

- - - - - - - - - - - - - - - - - - - -x




      *
          The Honorable Edward R. Korman, United States District
Judge for the Eastern District of New York, sitting by
designation.
FOR DEFENDANT-APPELLANT:       KELLEY J. SHARKEY, Law Office of
                               Kelley J. Sharkey, Esq., Brooklyn,
                               New York.

FOR APPELLEE:                  JULIAN J. MOORE, Assistant United
                               States Attorney (Justin Anderson,
                               Assistant United States Attorney,
                               on the brief), for Preet Bharara,
                               United States Attorney for the
                               Southern District of New York, New
                               York, New York.

          Appeal from a judgment of the United States District

Court for the Southern District of New York (Marrero, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED.

          Defendant-appellant Patrick Desrosier appeals from a

judgment of conviction, entered February 22, 2010, convicting him

of conspiracy to distribute cocaine base and cocaine in violation

of 21 U.S.C. § 846 and sentencing him principally to a term of

imprisonment of 120 months.   Following entry of his plea of

guilty on April 6, 2009, Desrosier sent a letter pro se to Judge

Marrero requesting to withdraw his plea.   Several days later his

lawyer submitted a letter advising that Desrosier wished to move
to withdraw his plea.   The district court denied the request on

April 24, 2009.   We assume the parties' familiarity with the

facts and procedural history, which we reference only as

necessary to explain our decision to affirm.

          On appeal, Desrosier challenges the district court's

denial of his motion to withdraw his guilty plea.   We review the

district court’s ruling for abuse of discretion.    United States


                                -2-
v. Doe, 

, 211 (2d Cir. 2008).    We conclude that the

district court applied the correct legal standards in denying

Desrosier's motion to withdraw and that it did not abuse its

discretion.

           Rule 11(d)(2)(B) provides that "a defendant may

withdraw a plea of guilty . . . after the court accepts the plea,

but before it imposes sentence if . . . the defendant can show a

fair and just reason for requesting the withdrawal."    Fed. R.

Crim. P. 11(d)(2)(B).   To assess whether a defendant has

demonstrated a "fair and just" reason for withdrawing a plea, "a

district court should consider inter alia: (1) the amount of time

that has elapsed between the plea and motion; (2) whether the

defendant has asserted a claim of legal innocence; and (3)

whether the government would be prejudiced by a withdrawal of the

plea."   

.   This third factor is not

dispositive, however, as "[t]he Government is not required to

show prejudice when opposing a defendant's motion to withdraw a

guilty plea where the defendant has shown no sufficient grounds

for permitting withdrawal."    United States v. Gonzalez, 

, 1100 (2d Cir. 1992).    Furthermore, where a motion to

withdraw a plea is premised on involuntariness, the defendant

must "raise a significant question about the voluntariness of the

original plea."   United States v. Torres, 

, 715 (2d

Cir. 1997).

           Desrosier argues that the district court applied the

wrong legal standard, relying on a passing comment made by Judge

                                 -3-
Marrero, that he found no "compelling grounds for a withdrawal."

It is clear from the record as a whole, however, that the

district court applied the appropriate "fair and just" standard

in denying Desrosier's motion to withdraw his plea.     At the

proceeding on April 24, 2009, for example, the government cited

Rule 11(d)(2)(B) to the district court and quoted the "fair and

just reason" test.     Moreover, the district court weighed the

relevant factors outlined in Doe and considered the voluntariness

of Desrosier's motion.

          First, the district court addressed the timeliness of

the request to withdraw, noting that the request was made

"shortly after or on the same day" as Desrosier's guilty plea.

See 

.    As to Doe's second factor, Desrosier

did not assert a claim of legal innocence, as he relied primarily

on his desire to file suppression motions, which the district

court found meritless.    Balancing these factors, the district

court found Desrosier's grounds for withdrawal "without any

basis" and "insufficient."    Given this finding, the government
was not required to show prejudice.     See 

.

          Furthermore, Desrosier presented no real question as to

the voluntariness of his plea.    He did not express any anxiety or

panic at his plea allocution and answered the question "Do you

feel ok?" with "Yes.    I'm fine."   Nor did Desrosier's initial

letter asking to withdraw his guilty plea mention any sense or


                                  -4-
state of panic.    Defense counsel's comments at the April 24,

2009, hearing are the only claim of any panic, as Desrosier never

submitted an affidavit.    In light of the Doe factors and the

absence of any question, much less a "significant question," as

to involuntariness, it was well within the district court's

discretion to refuse to allow Desrosier to withdraw his plea of

guilty.

            We have considered all of Desrosier's contentions on

appeal and have found them to be without merit.    Accordingly, for

the reasons stated above, the judgment of the district court is

AFFIRMED.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




                                 -5-