Filed: Dec. 14, 2010
Latest Update: Feb. 21, 2020
Summary: 10-0729-cr USA v. Pendergrass UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION
Summary: 10-0729-cr USA v. Pendergrass UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ..
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10-0729-cr
USA v. Pendergrass
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14 th day of December, two thousand and ten.
5
6 PRESENT: WILFRED FEINBERG,
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-0729-cr
18
19 AARON PENDERGRASS,
20
21 Defendant-Appellant.
22
23
24 FOR APPELLANT: DEVIN McLAUGHLIN, Langrock, Sperry &
25 Wool, LLP, Middlebury, VT.
26
27 FOR APPELLEE: NANCY J. CRESWELL, Assistant United
28 States Attorney, (Gregory L. Waples,
29 Assistant United States Attorney, on the
30 brief), for Tristram J. Coffin, United
31 States Attorney for the District of
32 Vermont, Burlington, VT.
33
1 Appeal from the United States District Court for the
2 District of Vermont (Reiss, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7 Appellant Aaron Pendergrass appeals from a judgment of
8 the United States District Court for the District of Vermont
9 (Reiss, J.), entered on February 19, 2010, convicting
10 Pendergrass upon a plea of guilty to participating in a
11 conspiracy to distribute narcotics, in violation of 21
12 U.S.C. §§ 841(b)(1)(A), 846, involving in excess of 50 grams
13 of crack cocaine. Pendergrass entered into a plea agreement
14 with the Government on July 22, 2009, in which he stipulated
15 that the charged conspiracy involved between 500 grams and
16 1.5 kilograms of crack, and agreed that he was “in fact,
17 guilty of the crime with which he [wa]s charged.” App. 18-
18 19. On appeal, he contends that the district court erred
19 insomuch as it denied his request to withdraw that plea of
20 guilty and proceed to trial. We assume the parties’
21 familiarity with the underlying facts, the procedural
22 history, and the issues presented for review.
23 Pendergrass first argues that the district court abused
24 its discretion in denying his motion to withdraw his guilty
2
1 plea because he presented a “fair and just” reason for doing
2 so, within the meaning of Fed. R. Crim. P. 11(d).
3 Specifically, Pendergrass contends that his guilty plea was
4 premised upon a misunderstanding of the Government’s
5 evidence against him. Apparently Pendergrass was under the
6 mistaken impression, based on incorrect statements to him by
7 his attorneys, that the Government’s evidence included over
8 50 grams of crack cocaine that was purchased directly from
9 Pendergrass by confidential informants pursuant to
10 “controlled buy” operations. In reality, the controlled
11 buys only yielded 48.11 grams of crack. Another 12 grams
12 were recovered from a drug courier known as “Baby,” and,
13 because Pendergrass was not aware of this fact until his
14 plea allocution, and he asserts that he was not the source
15 of the 12 grams of crack recovered from Baby, he maintains
16 that his plea of guilty to a conspiracy involving more than
17 50 grams of crack cocaine should be withdrawn.
18 To assess whether a defendant has proffered a “fair and
19 just” reason for withdrawal of a guilty plea, Fed. R. Crim.
20 P. 11(d), “a district court should consider, inter alia: (1)
21 the amount of time that has elapsed between the plea and
22 motion; (2) whether the defendant has asserted a claim of
3
1 legal innocence; and (3) whether the government would be
2 prejudiced by a withdrawal of the plea.” United States v.
3 Doe, 537 F.3d 204, 210 (2d Cir. 2008). The defendant bears
4 the burden of establishing that relief is warranted, and he
5 must do so with evidence. See United States v. Hirsch, 239
6 F.3d 221, 225 (2d Cir. 2001). “A defendant’s bald
7 statements that simply contradict what he said at his plea
8 allocution are not sufficient grounds to withdraw the guilty
9 plea.”
Id. (quoting United States v. Torres,
129 F.3d 710,
10 715 (2d Cir. 1997)).
11 Notwithstanding that five weeks elapsed between the
12 entry of Pendergrass’s guilty plea and his motion to
13 withdraw the plea, Pendergrass has not met his burden of
14 establishing a fair and just reason for withdrawing the
15 plea. He contends that he has asserted a claim of “legal
16 innocence” of the crime charged, insomuch as he denies
17 responsibility for the 12 grams of crack recovered from
18 Baby, but he has never made any showing — either to the
19 district court, or to this Court — that his stipulation that
20 the conspiracy involved between 500 grams and 1.5 kilograms
21 of crack was incorrect when made. Whether the 12 grams of
22 crack recovered from Baby is considered or not, the
4
1 Government was prepared to present at trial (and, at
2 sentencing, did so present) that the scope of the conspiracy
3 involved well in excess of 50 grams of crack. Pendergrass
4 has presented absolutely no evidence to the contrary.
5 And, most importantly, during his plea allocution
6 Pendergrass was presented with all of the Government’s
7 evidence against him — including that only 48.11 grams of
8 crack were recovered directly from Pendergrass, and that the
9 Government was prepared to prove “a much larger quantity . .
10 . than 60 grams” at trial — and acknowledged that the
11 recitation of facts was accurate, and that he wished to
12 plead guilty. App. 37, 41. His subsequent conclusory
13 assertions, through counsel, that he is innocent of the
14 crime charged, in no way impugn the validity or accuracy of
15 that plea, for “a change of heart prompted by [defendant’s]
16 reevaluation of either the Government’s case against him or
17 the penalty that might be imposed is not a sufficient reason
18 to permit withdrawal of a plea.” United States v. Gonzales,
19 970 F.2d 1095, 1100 (2d Cir. 1992).
20 Pendergrass next argues that the district court should
21 have permitted him to withdraw his guilty plea because it
22 was the product of ineffective assistance of counsel.
5
1 Although “in most cases a motion brought under [28 U.S.C.] §
2 2255 is preferable to direct appeal for deciding claims of
3 ineffective assistance,” Massaro v. United States, 538 U.S.
4 500, 504 (2003), there are circumstances in which an
5 ineffective assistance claim can be resolved “beyond any
6 doubt” and “in the interest of justice,” United States v.
7 Gaskin,
364 F.3d 438, 468 (2d Cir. 2004).
8 We do so here. Even assuming, arguendo, that
9 Pendergrass’s trial attorneys were constitutionally
10 deficient in telling Pendergrass that the amount of crack
11 involved in the controlled buys was greater than 50 grams,
12 Pendergrass cannot establish that, but for that error, “he
13 would not have pled guilty and would have proceeded to
14 trial.” United States v. Arteca,
411 F.3d 315, 320 (2d Cir.
15 2005). Taken in its totality, the record does not
16 demonstrate with any reasonable probability that Pendergrass
17 would have proceeded to trial had he known that the
18 controlled buys only amounted to 48.11 grams of crack, in
19 light of the following: (1) Pendergrass knowingly and
20 voluntarily entered a plea of guilty after the Government
21 marshaled its evidence, including the amount of crack
22 obtained directly from Pendergrass pursuant to the
6
1 controlled buys; (2) Pendergrass received a three-level
2 reduction for acceptance of responsibility that he would
3 have lost had he proceeded to trial; (3) two of
4 Pendergrass’s co-conspirators had pled guilty and agreed to
5 testify against him; and (4) the evidence of Pendergrass’s
6 guilt, most of which has never been contested by
7 Pendergrass, is overwhelming. See, e.g., id. at 321-22.
8 Accordingly, we conclude that there is no reasonable
9 probability that, but for counsels’ alleged errors,
10 Pendergrass would have proceeded to trial.
11 We have considered Pendergrass’s remaining arguments
12 and find them to be without merit. For the foregoing
13 reasons, the judgment of the district court is hereby
14 AFFIRMED.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
7
