     13-4844
     United States v. Williams

                          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 April, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DENNY CHIN,
 8                         Circuit Judges,
 9                ELIZABETH A. WOLFORD,*
10                         District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               13-4844
17
18       PHILLIP F. WILLIAMS,
19                Defendant-Appellant.**
20       - - - - - - - - - - - - - - - - - - - -X
21

                *
               Judge Elizabeth A. Wolford, of the United States
         District Court for the Western District of New York, sitting
         by designation.
                **
                The Clerk of Court is directed to amend the case
         caption as above.
                                                  1
 1   FOR APPELLANT:             PAUL J. ANGIOLETTI, Staten
 2                              Island, New York.
 3
 4   FOR APPELLEE:              MICHAEL F. PERRY (with Carl
 5                              Eurenius, on the brief), for
 6                              Richard S. Hartunian, United
 7                              States Attorney for the Northern
 8                              District of New York, Syracuse,
 9                              New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Northern District of New York (Scullin, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Phillip Williams appeals from the judgment of the
19   United States District Court for the Northern District of
20   New York (Scullin, J.), sentencing him chiefly to 96 months’
21   imprisonment on his plea of guilty to one count of narcotics
22   conspiracy and one count of possessing a firearm in
23   furtherance of that narcotics conspiracy. We assume the
24   parties’ familiarity with the underlying facts, the
25   procedural history, and the issues presented for review.
26
27        Williams was charged in a two-count indictment with:
28   (1) conspiring to possess with intent to distribute, and
29   conspiring to distribute, 500 grams or more of cocaine; and
30   (2) possessing firearms in furtherance of that conspiracy,
31   in violation of 18 U.S.C. § 924(c). In June 2013, Williams
32   entered a plea agreement with the government. Under the
33   plea agreement, Williams waived his right to appeal (among
34   other things) his conviction. At the plea hearing, the
35   district court took several steps to ascertain the factual
36   basis for the plea: it incorporated by reference the factual
37   background of the plea agreement; it asked the government to
38   explain certain facts; and it asked Williams questions
39   pertaining to the government’s explanation.
40
41        The government explained that Williams had traveled
42   multiple times from upstate New York to New York City, paid
43   for cocaine in New York City, and brought the cocaine back
44   upstate, to be distributed by members of the conspiracy.
45   When law enforcement officers searched Williams’s trailer
46   residence on December 13, 2011, they discovered cocaine,
47   equipment for drug distribution, and two loaded firearms.

                                  2
 1        Williams initially confirmed the factual accuracy of
 2   the government’s explanation, but later in the hearing
 3   asserted that the firearms had neither belonged to him nor
 4   been used in furtherance of the conspiracy. The district
 5   court engaged in a prolonged colloquy to resolve those
 6   factual issues. Williams denied owning the firearms but
 7   admitted to knowing about their location--one underneath the
 8   mattress where he slept and the other underneath a couch
 9   cushion. He also mentioned a state court proceeding
10   (explained in greater detail on the record by the government
11   and by Williams’s counsel) in which he had pled guilty to
12   possession of stolen property--i.e., a firearm--arising from
13   the same facts as this prosecution. The colloquy ended with
14   the following exchange:
15
16       THE COURT:      . . . Did you possess them? You knew
17                       they were there, you hid them in your
18                       mattress and they were there in
19                       furtherance of the drug conspiracy for
20                       protection or whatever it might be, is
21                       that correct?
22
23       WILLIAMS:       Yes, your Honor.
24
25   (Plea Tr. at 19.)   Thereafter, the court accepted Williams’s
26   guilty plea.
27
28        The district court later sentenced Williams to 36
29   months’ imprisonment for the narcotics conspiracy and
30   consecutively to 60 months’ imprisonment for the firearms
31   violation under § 924(c). On appeal, Williams challenges
32   only his conviction on the § 924(c) count, contending that
33   the district court lacked the requisite factual basis to
34   accept his guilty plea.
35
36        Williams’s appeal waiver is not a bar to our deciding
37   his challenge to the factual basis of his plea:
38
39       [D]espite a provision in the plea agreement
40       stating that [a defendant] will not file an appeal
41       or otherwise challenge the conviction or sentence,
42       we may properly review the plea proceedings. This
43       is because “a defendant retains the right to
44       contend that there were errors in the proceedings
45       that led to the acceptance of his plea of guilty,”
46       and he may argue that the district court failed to


                                  3
 1       satisfy the requirement that there is a factual
 2       basis for the plea.
 3
 4   United States v. Adams, 448 F.3d 492, 497-98 (2d Cir. 2006)
 5   (internal quotation marks and ellipsis omitted) (quoting
 6   United States v. Maher, 108 F.3d 1513, 1528-29 (2d Cir.
 7   1997)). We therefore may review Williams’s plea proceeding.
 8
 9        “We review for an abuse of discretion a district
10   court’s decision that a defendant’s factual admissions
11   support conviction on the charge to which he has pleaded
12   guilty.” Adams, 448 F.3d at 498. A plain error standard
13   also applies because Williams did not challenge the factual
14   basis of his plea before the district court. See United
15   States v. Garcia, 587 F.3d 509, 515 (2d Cir. 2009).
16
17        Before accepting a guilty plea, a district court “must
18   determine that there is a factual basis for a plea.” Fed.
19   R. Crim. P. 11(b)(3). This rule requires the district court
20   “to assure itself simply that the conduct to which the
21   defendant admits is in fact an offense under the statutory
22   provision under which he is pleading guilty.” Maher, 108
23   F.3d at 1524. “In making its factual-basis determination,
24   the court is not required to rely solely on the defendant’s
25   own admissions,” and indeed the district court may turn to
26   statements “of the defendant, of the attorneys for the
27   government and the defense, [or] of the presentence report
28   when one is available.” Id. (quoting Fed. R. Crim. P. 11,
29   Advisory Committee Note (1974)).
30
31        Williams contends that the district court lacked a
32   factual basis for accepting the plea to the § 924(c) charge.
33   Specifically, he urges that the facts do not give rise to “a
34   specific ‘nexus’ between the charged firearm and the charged
35   drug selling operation,” as required by United States v.
36   Snow, 462 F.3d 55, 62 (2d Cir. 2006). At the plea hearing,
37   Williams confirmed the accuracy of the government’s account
38   of the facts, which included the assertion that “defendant
39   admits that he possessed the two firearms described above in
40   furtherance of the drug trafficking conspiracy.” (Plea Tr.
41   11-12.) He also answered in the affirmative when the
42   district court asked him (albeit in the form of a broader,
43   compound question) whether he “knew they were there, [] hid
44   them in [his] mattress and they were there in furtherance of
45   the drug conspiracy for protection or whatever it might be.”
46   (Plea Tr. 19.) Moreover, the government stated that the
47   firearms had been discovered loaded with ammunition and

                                  4
 1   concealed in easily reachable locations in the same trailer
 2   where Williams undertook activities related to the cocaine
 3   conspiracy. The district court did not abuse its
 4   discretion, and certainly did not plainly err, in
 5   determining that these circumstances provided adequate
 6   factual basis for Williams’s plea.
 7
 8        For the foregoing reasons, and finding no merit in
 9   Williams’s other arguments, we hereby AFFIRM the judgment of
10   the district court.
11
12                              FOR THE COURT:
13                              CATHERINE O’HAGAN WOLFE, CLERK
14
15
16




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