15-270, 15-2157
     United States v. Crespo

                          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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                BARRINGTON D. PARKER,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-270,
16                                                                       15-2157
17       DAVID J. CRESPO,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        DAVID S. KEENAN, Assistant
22                                             Federal Public Defender, for
23                                             Terence S. Ward, Federal Public
24                                             Defender, New Haven, CT.
25
26       FOR APPELLEE:                         ANTHONY E. KAPLAN (with Sandra
27                                             S. Glover on the brief),
28                                             Assistant United States

                                                  1
 1                              Attorneys, for Deirdre M. Daly,
 2                              United States Attorney for the
 3                              District of Connecticut.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the District of Connecticut (Burns, J.; Hall,
 7   C.J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        David J. Crespo appeals from the judgment of conviction
14   and sentence of the United States District Court for the
15   District of Connecticut (Burns, J.; Hall, C.J.). We assume
16   the parties' familiarity with the underlying facts, the
17   procedural history, and the issues presented for review.
18
19        1.  Crespo challenges whether there was a factual
20   basis for his plea. We ordinarily review such a challenge
21   for abuse of discretion; but when (as here) a defendant did
22   not challenge the validity of his plea before the district
23   court at the time it was entered, we review for plain error
24   only. See United States v. Garcia, 

, 515 (2d
25   Cir. 2009) (citing United States v. Vonn, 

, 58-59
26   (2002)).
27
28        Crespo claims that his guilty plea is invalid because
29   he did not admit to facts articulated by Government counsel
30   -- specifically, that he acted with specific intent to
31   defraud. However, the district court inquired whether
32   Crespo had violated the mail fraud statute and did so by
33   advising him of the specific elements of the offense,
34   including “knowingly and willfully participat[ing] in the
35   scheme or artifice to defraud with knowledge of its
36   fraudulent nature, and with specific intent to defraud . . .
37   .” J. App’x at 61-62 (emphasis added). Crespo responded,
38   “Yes.” 

coupled with the Government’s
39   detailed proffer of the facts, satisfied the requirements of
40   Federal Rule of Criminal Procedure 11(b)(3). See Garcia,

.
42
43        2.  Crespo claims that the district court erred by
44   advising him to speak to his attorney when Crespo raised
45   questions about whether he should have pleaded guilty. A
46   district court may permit a defendant to withdraw a guilty
47   plea after acceptance only if he “can show a fair and just

                                  2
 1   reason for requesting the withdrawal.” Fed. R. Crim. P.
 2   11(d)(2)(B). Although Crespo made comments during a hearing
 3   that suggest that he was unhappy with the plea, he never
 4   made a motion to withdraw his guilty plea.   Crespo’s wish
 5   to withdraw his plea appears motivated by his own
 6   reevaluation of the strength of the Government’s case; that
 7   is not a “fair and just” reason he should have been
 8   permitted to withdraw his plea. See United States v.
 9   Figueroa, 

, 475 (2d Cir. 1985) (“The reasons
10   urged by [defendant] to support his withdrawal motion boil
11   down to a change of heart prompted by a reevaluation of the
12   government’s case against him; but these do not constitute
13   sufficient justification to overturn the district court’s
14   broad discretion in this area.”).
15
16        3.  Crespo argues that the district court
17   impermissibly denied him the right to self-representation or
18   hybrid representation in violation of the Sixth Amendment.
19   Whether a defendant has knowingly and intelligently waived
20   counsel is a question of law, reviewed de novo, as applied
21   to the facts as found by the district court, which are
22   reviewed for clear error. See Brewer v. Williams, 

  387, 403 (1977). “[E]ven after the right to proceed pro se
24   has been clearly and unequivocally asserted, the right may
25   be waived through conduct indicating that one is vacillating
26   on the issue or has abandoned one’s request altogether.”
27   United States v. Barnes, 

, 271 (2d Cir. 2012).
28
29        Crespo filed a letter request for appointment of new
30   counsel, or, in the alternative, to appear pro se. The
31   district court held a hearing with both standby counsel and
32   appointed counsel, and at the hearing Crespo and his
33   attorney acknowledged that they had reconciled.
34   Furthermore, by accepting appointed counsel’s representation
35   for the months leading up to sentencing, Crespo made clear
36   by conduct that he had abandoned his request to represent
37   himself. See 

Accordingly, the district court
38   did not violate Crespo’s Sixth Amendment rights.
39
40        Insofar as Crespo challenges the denial of hybrid
41   representation -- to which he had no constitutional right --
42   he fails to demonstrate abuse of the district court’s
43   discretion to deny the request. See Clark v. Perez, 510

, 394 (2d Cir. 2008).
45
46        4.   Crespo argues that his sentence was procedurally
47   and substantively unreasonable.   We review sentencing under

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 1   a “deferential abuse-of-discretion standard.” United States
 2   v. Cavera, 

, 189 (2d Cir. 2008) (en banc)
 3   (quoting Gall v. United States, 

, 41 (2007)). A
 4   sentence is procedurally reasonable so long as the district
 5   court did not commit a “significant procedural error, such
 6   as failing to calculate (or improperly calculating) the
 7   Guidelines range, treating the Guidelines as mandatory,
 8   failing to consider the [18 U.S.C.] § 3553(a) factors,
 9   selecting a sentence based on clearly erroneous facts, or
10   failing to adequately explain the chosen sentence --
11   including an explanation for any deviation from the
12   Guidelines range.” 

.
13
14        If the sentence is procedurally sound, we then
15   “consider the substantive reasonableness of the sentence
16   imposed . . . . tak[ing] into account the totality of the
17   circumstances.” 

imposed by the district
18   court is substantively unreasonable only if it “cannot be
19   located within the range of permissible decisions.” Cavera,

(quoting United States v. Rigas, 

  208, 238 (2d Cir. 2007)). We will set aside sentencing
22   decisions only in “exceptional cases,” 

will not
23   substitute our judgment for that of the district court,
24   United States v. Fernandez, 

, 27 (2d Cir. 2006).
25
26        Crespo makes three arguments as to why his sentence was
27   procedurally unreasonable. First, Crespo asserts that the
28   district court made no findings prior to imposing the
29   sentence; however, the district court stated its findings
30   and issued a memorandum explaining how it calculated
31   intended loss and why it applied and rejected certain
32   enhancements. Crespo argues that the notice of appeal
33   divested the district court of jurisdiction to issue this
34   memorandum, but the memorandum did not modify the judgment
35   substantively and was a permissible act in “aid of” the
36   appeal. See United States v. Nichols, 

, 411 (2d
37   Cir. 1995).
38
39        Second, Crespo argues that the intended loss finding
40   (which added 14 points to the base offense level) was
41   erroneous because the Government did not prove that one of
42   the paintings at issue was fake, that Crespo intended to
43   sell it for approximately $725,000, or that Crespo knew the
44   artwork was fake. However, the record included admissions
45   from defendant that the painting was not real, testimony
46   regarding the discussed purchase price of the painting, and
47   a finding of Crespo’s intent to sell based on reasonable

                                  4
 1   inferences drawn from testimony and Crespo’s “dire financial
 2   situation,” J. App’x at 736.
 3
 4        Third, Crespo argues that the district court did not
 5   consider the sentencing factors in 18 U.S.C. § 3553(a).
 6   However, Crespo can point to no record evidence that the
 7   district court failed to consider the relevant factors, and
 8   we do not require “robotic incantations” in reaching a
 9   sentence. United States v. Crosby, 

, 113 (2d
10   Cir. 2005); see also 

(“[W]e
11   presume, in the absence of record evidence suggesting
12   otherwise, that a sentencing judge has faithfully discharged
13   her duty to consider the statutory factors.”). Accordingly,
14   each of Crespo’s three challenges to the procedural
15   reasonableness of his sentence fails.
16
17        As to substantive unreasonableness, Crespo argues that
18   undue weight was placed on intended loss. However, Crespo’s
19   sentence was within the Guidelines range and well within the
20   range of permissible decisions. See 

  189.
22
23        5. Crespo argues that the restitution order was
24   erroneous because the Government assumed the fake artwork
25   was “worthless” in calculating the loss to victims. The
26   Mandatory Victims Restitution Act, 18 U.S.C. §§ 3663A and
27   3664, requires that a court determine the amount of each
28   victim’s losses caused by a defendant’s offense of
29   conviction. The district court’s determination need not be
30   “mathematically precise”; the district court must make a
31   “reasonable approximation of losses supported by a sound
32   methodology.” United States v. Gushlak, 

, 195-
33   96 (2d Cir. 2013).
34
35        The district court ordered restitution to each victim
36   in the amount of the price paid to Crespo for the artwork.
37   To avoid any windfall to the victims, the district court
38   also ordered victims to return to the Government any artwork
39   for which they sought restitution. The Government would
40   sell the returned artwork and the proceeds would be used to
41   make restitution to the victims. This methodology was
42   sound, avoided the need for an ex ante independent appraisal
43   of every fake artwork that was sold, and was a reasonable
44   approximation of the victims’ losses. We therefore reject
45   Crespo’s argument that the district court erred in
46   calculating restitution.
47

                                  5
 1        6.   Crespo claims that his sentencing testimony was
 2   impermissibly coerced by the district court’s threat to
 3   treat his silence as an indication of guilt. Because Crespo
 4   did not object to the court’s statement at the time, his
 5   argument is reviewed for plain error only. Under plain
 6   error review, a defendant must “demonstrate that (1) there
 7   was error, (2) the error was plain, (3) the error
 8   prejudicially affected his substantial rights, and (4) the
 9   error seriously affected the fairness, integrity or public
10   reputation of judicial proceedings.” United States v. Cook,
11   

, 481 (2d Cir. 2013) (internal quotations
12   omitted).
13
14        The Government moved to revoke Crespo’s bond for
15   posting disparaging comments on the Wikipedia page of a
16   known grand jury witness. The district court considered the
17   motion at the beginning of the sentencing hearing, and asked
18   defense counsel whether Crespo admitted that he made the
19   comments. [JA 215-20]. Counsel responded that Crespo was
20   going to invoke his Fifth Amendment right to remain silent,
21   and the court responded by saying “Okay, I can make an
22   inference from that. All right, I’m going to accept the
23   government’s position that those changes were made by the
24   defendant, and we can proceed from there.” J. App’x at 220-
25   21.
26
27        The exchange, in context, does not lead to the
28   conclusion that the district court necessarily drew an
29   inference that Crespo committed the Wikipedia violation
30   because he was silent. Rather, the fairest reading of the
31   record shows that the district court most likely reached its
32   conclusion based on the Government’s motion and evidence --
33   which Crespo was unable to meaningfully challenge or
34   contradict. See United States v. Hernandez, 445 F. App’x
35   409, 411 (2d Cir. 2011) (“If [defendant] had objected to the
36   inference drawn by the district court during sentencing, any
37   ambiguity about the court’s words could have been
38   resolved.”). Further, the district court did not revoke
39   Crespo’s bail as the government had sought in presenting
40   evidence regarding the Wikipedia comments. Nor did it
41   reference those comments in imposing sentence. In any
42   event, to the extent the district court’s statement about
43   the inference was an error, that error was certainly not so
44   serious as to affect the fairness, integrity, or reputation
45   of judicial proceedings, given the totality of circumstances
46   overwhelmingly supporting the district court’s sentence.
47   See 

; Hernandez, 445 F. App’x at 411.

                                  6
 1        7.   Crespo argues that his trial counsel provided
 2   constitutionally ineffective assistance by failing to object
 3   to the inadequate plea colloquy, failing to heed Crespo’s
 4   wish to withdraw his plea, and failing to object to the
 5   violation of Crespo’s Fifth Amendment right to remain
 6   silent. He also claims that his trial counsel was
 7   ineffective because he permitted a defense expert to be
 8   interviewed by the FBI.
 9
10        To establish a claim that counsel was constitutionally
11   ineffective, a defendant “must show both that his counsel’s
12   performance was deficient as measured by objective
13   professional standards, and that this deficiency prejudiced
14   his defense.” Purdy v. United States, 

, 44 (2d
15   Cir. 2000). “When ineffective assistance of counsel is
16   first raised in a court of appeals on direct review of a
17   conviction, it is often preferable for the court to decline
18   to consider the claim, awaiting its presentation in a
19   collateral proceeding.” United States v. Brown, 

  104, 112 (2d Cir. 2010). We may do so, however, where the
21   factual record is sufficiently developed that resolution of
22   the claim is “beyond any doubt.” United States v. Gaskin,
23   

, 468 (2d Cir. 2004). Because we identify no
24   error in the district court’s acceptance of Crespo’s guilty
25   plea, trial counsel could not have been ineffective for
26   failing to object on that basis. See, e.g., United States
27   v. Wolfson, 

, 296 n.1 (2d Cir. 2011). Insofar
28   as the district court did not revoke Crespo’s bail at the
29   revocation hearing or reference his Wikipedia comments at
30   sentencing, and the challenged sentence finds overwhelming
31   support in the record, Crespo cannot show the requisite
32   prejudice from counsel’s failure to assert a Fifth Amendment
33   objection below. See Strickland v. Washington, 

  668, 694 (1984). Accordingly, we conclude that these claims
35   fail on the merits. We decline to address Crespo’s
36   remaining ineffectiveness claims on the present record,
37   instead dismissing them without prejudice to their being
38   raised in collateral proceedings.
39
40
41
42
43
44
45
46


                                  7
1        For the foregoing reasons, and finding no merit in
2   defendant’s other arguments, we hereby AFFIRM the judgment
3   of the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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