09-2579-cr
USA v. Deacon
                             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, at 500 Pearl Street, in the City of New York,
on the 9th day of March, two thousand eleven.

Present:    ROBERT A. KATZMANN,
            REENA RAGGI,
                           Circuit Judges.*

____________________________________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                            - v. -                         No. 09-2579-cr

JOSEPH DEACON, also known as Valentino,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                           ROBERT J. BOYLE, Law Office of Robert J.
                                                   Boyle, Esq., New York, NY

For Appellee:                                      ANTONIA M. APPS, Assistant United States
                                                   Attorney (Daniel A. Braun, Assistant United
                                                   States Attorney, on the brief), for Preet Bharara,
                                                   United States Attorney for the Southern District
                                                   of New York, New York, NY



        *
         Judge Raymond J. Lohier, Jr., originally a member of the panel, recused himself from
consideration of this matter and did not participate in this decision. This appeal is being decided
by the remaining members of the panel, who are in agreement. See 2d Cir. R. 0.14.
        Appeal from the United States District Court for the Southern District of New York
(Patterson, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Joseph Deacon appeals from a judgment of conviction following a

guilty plea, entered on June 8, 2009, in the United States District Court for the Southern District

of New York (Patterson, J.), to one count of conspiracy to deal in firearms without a license, in

violation of 18 U.S.C. § 371; one count of dealing in firearms without a license, in violation of

18 U.S.C. § 922(a)(1)(A); one count of possessing a firearm as a convicted felon, in violation of

18 U.S.C. § 922(g)(1); and one count of distributing more than 50 grams of crack cocaine and

more than 50 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

Deacon’s plea was accepted on April 29, 2008, and Deacon then moved to withdraw the plea on

September 5, 2008. The district court denied Deacon’s motion, and Deacon moved pro se for

reconsideration on March 19, 2009, which the district court denied, inter alia, as untimely. On

appeal, Deacon argues that the district court abused its discretion in denying his initial and

renewed motions to withdraw the guilty plea, and that his sentence should be vacated and the

case remanded for resentencing based on the doctrines of sentencing manipulation and

sentencing entrapment. We assume the parties’ familiarity with the remaining facts and the

procedural history of the case, which we reference as necessary to explain our decision.

        We turn first to Deacon’s motion to withdraw his guilty plea. “A defendant may

withdraw a plea of guilty . . . after the court accepts the plea but before sentence, if . . . the

defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.




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11(d)(2)(B). We review a district court’s denial of motion to withdraw a guilty plea for abuse of

discretion. United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (per curiam).

       There is no absolute right to withdraw a guilty plea. See United States v. Karro, 257 F.3d

112, 117 (2d Cir. 2001). “[A] defendant who seeks to withdraw his plea bears the burden of

satisfying the trial judge that there are valid grounds for withdrawal.” United States v. Doe, 537

F.3d 204, 210 (2d Cir. 2008) (quoting United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir.

1992)) (internal quotation mark omitted). “Society has a strong interest in the finality of guilty

pleas, and allowing withdrawal of pleas not only undermines confidence in the integrity of our

judicial procedures, but also increases the volume of judicial work, and delays and impairs the

orderly administration of justice.” United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997)

(alteration and internal quotation marks omitted).

       “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.’” Doe, 537 F.3d at 211

(quoting United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997)). “Where the motion argues

that the plea was not voluntary, a fortiori the court must focus on voluntariness.” Id. (internal

quotation marks omitted).

       On appeal, Deacon claims, as he argued below, that his plea “was not a knowing and

intelligent one,” based on his disagreements with [his appointed counsel] and because of “his

confusion and discussions with his attorney as well as legal consultant (Mr. Stein) centered

around Count 4.” J.A. 64-65. He also argues that at the time of the plea he was severely

compromised by the news that his father had suffered a stroke. Based on our independent review

of the record, we agree with the district court’s conclusion that there is nothing that “indicates . .

. that this plea was [anything] other than a knowing and voluntary plea.” J.A. 82.

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       Deacon appeared on the morning of April 29, 2008, accompanied by his court-appointed

counsel, to waive indictment and enter a guilty plea pursuant to a plea agreement prepared by the

government. The district court adjourned the proceeding at the request of Deacon, who had

questions about the plea agreement. When the parties reconvened later that afternoon, Deacon

still had reservations about the agreement but indicated his intent to enter a guilty plea. After he

spent additional time with his counsel, he executed a waiver of indictment but requested new

counsel to address his ongoing reservations regarding the plea agreement, and in particular, the

legal effect of a prison sentence he had recently served on the calculation of his sentence in this

case. Rather than relieve Deacon’s appointed counsel, the district court permitted Deacon to

consult with the Criminal Justice Act (“CJA”) attorney on duty that day. After Deacon consulted

with the CJA attorney, the parties again appeared before the district court that same day, and the

CJA attorney advised the court that Deacon was prepared to enter a plea pursuant to a Pimentel

letter, rather than the plea agreement. Following the district court’s inquiries pursuant to Rule

11, Deacon pleaded guilty. Nothing in the record suggests that Deacon’s reservation about

entering the plea was not resolved during his consultation with the CJA attorney. Accordingly,

based on our review of the record, we find no abuse of discretion in the district court’s denial of

the motion to withdraw the guilty plea.

       In his motion for reconsideration submitted five months later, Deacon raised for the first

time the argument that his appointed attorney’s representation was ineffective because she had

failed to advise him properly on a defense of entrapment. The district court deemed the motion

for reconsideration to be untimely. Deacon has also provided no evidence to suggest that his

appointed attorney failed to advise him properly about an entrapment defense, which he could

have raised on the first motion, and Deacon and his defense counsel declined to request an

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evidentiary hearing on the matter. Moreover, the district court indicated that the claim of

entrapment was relevant only to sentencing and did not provide a basis for withdrawing the

guilty plea, because the evidence clearly demonstrated that Deacon had distributed and

possessed with intent to distribute heroin, in violation of 21 U.S.C. § 841(a). Accordingly, for

the foregoing reasons, we find no abuse of discretion in the district court’s denial of Deacon’s

renewed motion.

        We turn next to Deacon’s sentencing manipulation/entrapment argument. On appeal,

Deacon argues that a government agent deliberately told an informant to convince Deacon to sell

60 grams of crack cocaine in order to reach the ten-year mandatory minimum term of

imprisonment and that the agent’s instructions are sufficient evidence of “outrageous” behavior

by the Government to constitute sentencing manipulation or entrapment. He argues that the case

should be remanded so that the district court can consider whether to impose a sentence below

the statutory minimum. The Government contends, and we agree, that Deacon failed to preserve

this error, and therefore we review for plain error.2 “For plain error, we must find (1) error, (2)

that is plain, and (3) that affects substantial rights; if these three conditions are met, we have

discretion to notice the forfeited error only if (4) the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” United States v. Dorvee, 616 F.3d 174, 180 n.2 (2d

Cir. 2010).




        2
         Deacon argues that the district court interpreted his written submission regarding the
withdrawal of his guilty plea to put forth the argument that he should not be subject to the
statutory mandatory minimum. Even if we were to consider Deacon’s argument under a more
permissive standard, as our discussion indicates, his argument for sentencing manipulation or
sentencing entrapment would fail.

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       This Court has not yet recognized the doctrines of sentencing manipulation or sentencing

entrapment. See United States v. Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007); United States v.

Caban, 173 F.3d 89, 93 n.1 (2d Cir. 1999); United States v. Oliveras, 359 F. App’x 257, 261 &

n.5 (2d Cir. 2010) (noting that other Circuits have suggested that “a [sentencing] departure based

on manipulation or entrapment might lie where the government engages in ‘outrageous’

conduct”). Sentencing manipulation occurs “when the government engages in improper conduct

that has the effect of increasing the defendant’s sentence.” United States v. Gomez, 103 F.3d

249, 256 (2d Cir. 1997) (internal quotation marks omitted). Sentencing entrapment is a related

concept that “normally ‘requires that a defendant convince the fact-finder that government

agents induced her to commit an offense that she was not otherwise predisposed to commit.’”

Caban, 173 F.3d at 93 n.1; see also Oliveras, 359 F. App’x at 261 & n.5 (describing sentencing

entrapment as a subset of sentencing manipulation). Here, Deacon argues that he was neither

predisposed to sell crack cocaine nor to sell the quantity requested by the government agent, and

thus his argument appears to encompass both sentencing manipulation and sentencing

entrapment.

       The Second Circuit has suggested that for a claim of sentencing manipulation to be

“valid, ‘it would likely require a showing of “outrageous” government conduct.’” Gagliardi,

506 F.3d at 148 (quoting United States v. Bala, 236 F.3d 87, 93 (2d Cir. 2000)). Here, Deacon

argues that where a government agent’s “exploitative manipulation . . . overbears a defendant’s

will,” that conduct is sufficiently outrageous to justify vacating the sentence and remanding so

that the district court may be permitted to impose a sentence below the mandatory minimum.

Def.’s Br. 30-32.




                                                6
       Under a plain error analysis, Deacon’s claim fails as these doctrines remain unsettled in

this Circuit. See United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004) (“For an error to be

plain, it must, at a minimum, be clear under current law. We typically will not find such error . .

. where there is no binding precedent from the Supreme Court or this Court.” (citations and

internal quotation marks omitted)). Nevertheless, even if Deacon had properly preserved this

claim, we do not believe that the agent’s behavior rises to the level of “outrageous” government

conduct that would warrant vacatur. The district court found that the agent’s conduct, while

troubling, was not “outrageous” and did not overbear Deacon’s will, and Deacon has provided

no competent evidence to the contrary. Deacon was asked by an undercover informant to sell a

certain quantity of crack cocaine, and while he initially resisted, he agreed moments later, and

the next day sold 60 grams of crack cocaine to the informant. This does not constitute

overbearing of one’s will for a claim of sentencing manipulation or sentencing entrapment. See

Gomez, 103 F.3d at 256 (“The validity of the concept of sentencing entrapment has not been

determined in this Circuit, but . . . even where it has been approved in theory, its potential

application has been limited to outrageous official conduct which overcomes the [defendant’s]

will.” (alteration and internal quotation marks omitted)). Moreover, even if this Court were to

recognize one or both doctrines and conclude that the agent’s actions constituted “outrageous”

government conduct, Deacon provides no authority that would justify the district court’s

imposition of a sentence below the statutory minimum in such circumstances. See Oliveras, 359

F. App’x at 258 (“[D]istrict courts generally lack the authority to impose a sentence below the

statutory minimum.” (citing Kimbrough v. United States, 552 U.S. 85, 108 (2007)).




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       We have considered Deacon’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.


                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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