12-3333-cr
United States v. Fox

                                    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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of March, two thousand fourteen.

PRESENT:
            PIERRE N. LEVAL,
            SUSAN L. CARNEY,
                         Circuit Judges,
            KATHERINE POLK FAILLA,
                         District Judge.
_____________________________________

UNITED STATES OF AMERICA,

                       Appellee,

                               v.                                                           No. 12-3333-cr

PAUL FOX, a/k/a Israel Chambers,

            Defendant-Appellant.
_____________________________________

FOR APPELLEE:                                                   PAUL D. SILVER (Lisa M. Fletcher, on the brief),
                                                                Assistant U.S. Attorneys, for RICHARD S.
                                                                HARTUNIAN, U.S. Attorney for the Northern
                                                                District of New York, Albany, NY.




          
            The Hon. Katherine Polk Failla, of the United States District Court for the Southern District of New York,
sitting by designation.
FOR DEFENDANT-APPELLANT:                                JAMES M. BRANDEN (Katherine Alfieri, on the
                                                        brief), Law Offices of Katherine Alfieri, New
                                                        York, NY.

        Appeal from a judgment of conviction of the United States District Court for the Northern
District of New York (Hurd, J.).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-Appellant Paul Fox (also known as Israel Chambers) appeals from a judgment of
conviction entered on August 15, 2012, following his guilty plea to conspiracy to possess with intent
to distribute more than 280 grams of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. The
crime to which Fox pleaded guilty ordinarily carries a mandatory minimum sentence of ten years’
imprisonment, see 21 U.S.C. § 841(b)(1)(A), but the statute also provides that “[i]f any person
commits such a violation after a prior conviction for a felony drug offense has become final,” that
person will be subject to a mandatory minimum term of twenty years’ imprisonment. Id. Pursuant
to 21 U.S.C. § 851, the statute governing the procedures for establishing such prior convictions, the
Government filed a special information alleging that Fox was previously convicted of Criminal Sale
of a Controlled Substance in the Fifth Degree, in violation of N.Y. Penal Law § 220.31, a felony
under New York law. Based on that prior felony drug conviction  the existence of which Fox
affirmed in open court, see Appellant’s App’x at 76  the District Court sentenced Fox principally to
the mandatory minimum term of twenty years.

        On appeal, Fox challenges his conviction and sentence on multiple grounds, arguing inter alia
that the District Court: (1) violated Federal Rule of Criminal Procedure 11(b)(1)(I) by failing to fully
apprise him of the mandatory minimum sentence he would face by pleading guilty, thereby
rendering his plea involuntary; (2) failed to comply with Section 851’s procedures for enhancing his
sentence based on his prior conviction; (3) erred in finding him competent to stand trial or to enter a
guilty plea; and (4) erroneously denied his request for substitute counsel. We assume the parties’
familiarity with the underlying facts and the procedural history of this case, to which we refer only as
necessary to explain our decision to affirm.




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         1. Rule 11(b)

         Fox first claims that the District Court violated Rule 11(b)(1)(I) by accepting his guilty plea
without adequately informing him of the twenty-year mandatory minimum sentence he faced under
21 U.S.C. § 841(b)(1)(A). Where, as here, the defendant “never sought to withdraw his plea, and did
not object at any time or in any way to the alleged Rule 11 violation in the district court, we review
for ‘plain error.’” United States v. Espinal, 634 F.3d 655, 658 (2d Cir. 2011). To show plain error in
the context of a Rule 11 violation, a defendant must establish (among other things) that “there is a
reasonable probability that, but for the error, he would not have entered the plea.” Id. (internal
quotation marks omitted). Fox has failed to meet that burden.

         At the District Court’s direction, the Government orally advised Fox during his plea hearing
that, as a result of his prior felony drug conviction, he was subject to a mandatory minimum term of
twenty years’ imprisonment. See Appellant’s App’x at 72-73. But even assuming, arguendo, that the
District Court’s plea colloquy was inadequate in this regard under Rule 11(b),1 Fox still has not met
his burden to show “a reasonable probability that, but for the error, he would not have entered the
plea.” Espinal, 634 F.3d at 658 (internal quotation marks omitted). Fox admits that the Presentence
Report (“PSR”), which was filed and made available to him well before sentencing, specifically
advised that a twenty-year mandatory minimum applied to his case. See Appellant’s Reply Br. at 7.
And although Fox lodged multiple objections to the PSR  including an objection to the mandatory
minimum itself  he never expressed to the court any surprise at the twenty-year term he faced, nor
did he ever seek to withdraw his guilty plea in light of the mandatory minimum that the PSR
identified. As our precedents make clear, “[w]here a defendant, before sentencing, learns of
information erroneously omitted in violation of Rule 11 but fails to attempt to withdraw his plea
based on that violation, there can be no reasonable probability that, but for the Rule 11 violation, he
would not have entered the plea, and the plain error standard is not met.” United States v. Vaval, 404
F.3d 144, 152 (2d Cir. 2005) (internal quotation marks and brackets omitted). Accordingly, Fox has


          1 During the plea proceeding, the Government correctly recited the maximum and mandatory minimum

statutory penalties that would be implicated by Fox’s guilty plea, as well as the applicable range under the United States
Sentencing Guidelines. Later on in the proceeding, however, both Fox and the District Court made statements that
could be interpreted to suggest a misperception of those penalties. Given the complexity of the sentencing issues
involved, it would have been preferable for the Government to have ensured on the record that the District Court did
not mislead the defendant as to his sentencing exposure. In other words, having obtained the relevant sentencing
information in advance of the plea proceeding, and having accurately stated it on the record to inform the defendant and
assist the District Court, the Government should have paid more careful attention to the remainder of the colloquy, in
order to ensure that nothing that was said by the Court confused or misstated the sentencing exposure.
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not demonstrated that the District Court’s Rule 11(b) omissions or mistakes, if any, amounted to
plain error.

        2. Compliance with Section 851 Procedures

        Fox next argues that his sentence was erroneously enhanced because the District Court
failed to follow the procedural requirements of Section 851. Since Fox lodged no objection of this
type in the court below, the Government urges us to review this claim for plain error only.
Although our precedents counsel that the court’s “[f]ailure to adhere to the letter of § 851’s
procedures does not automatically invalidate the resulting sentence,” Espinal, 634 F.3d at 665, we
have not yet ruled on whether such unpreserved claims of procedural error are subject to review for
“plain error,” or “harmless error.” See United States v. Roman, 464 F. App’x 32, 34 (2d Cir. 2012)
(noting that, in Espinal, “[w]e left open the question of whether failure to adhere to § 851’s
procedures is subject to plain error or harmless error review”). But we need not decide that issue
today; as explained below, Fox’s claim fails under either standard.

        Generally speaking, to impose an enhanced sentence based on a prior felony drug conviction
under Section 841(b), the court must follow the “specific, multistep procedure” outlined under
Section 851. Espinal, 634 F.3d at 662. As relevant here, that procedure requires the court (1) to
inquire of the defendant, after conviction but before sentencing, whether he “affirms or denies that
he has been previously convicted as alleged in the information”; and (2) to “inform him that any
challenge to a prior conviction which is not made before sentence is imposed may not thereafter be
raised to attack the sentence.” 21 U.S.C. § 851(b). Fox argues that the District Court failed to
comply fully with these requirements, and he was prejudiced as a result. We disagree.

        The record reveals that, during the plea colloquy, the District Court asked Fox directly
whether he had been convicted of a prior drug felony as alleged by the Government, and Fox
responded in the affirmative. Appellant’s App’x at 76. Upon our careful review of the record, we
are satisfied that Fox’s admission, made in open court, was sufficient for Section 851(b) purposes.
True, the District Court did not explain that Fox would waive any later challenge to that predicate
conviction by failing to raise the challenge before sentencing. But this oversight caused no
prejudice. Fox has not shown that he has any challenge to the validity of the prior conviction.




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Accordingly, there was no way that, with more complete advice from the court, he could have
nullified the obligation to sentence him as a prior offender.2

         3. Competency Determination

         Fox next argues that the District Court erred in finding him competent to stand trial or enter
a guilty plea. To be considered “competent,” a defendant must have “(1) sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding and (2) a rational as well
as factual understanding of the proceedings against him.” United States v. Nichols, 56 F.3d 403, 410
(2d Cir. 1995) (internal quotation marks omitted). In making a competency determination, the court
may rely on medical opinions, its observation of the defendant’s behavior, and other factors. Id. at
411. Where, as here, the district court conducted a hearing, we review the court’s competency
findings for clear error. See United States v. Morrison, 153 F.3d 34, 46 (2d Cir. 1998). In Fox’s case, we
identify none.

         At the request of Fox’s counsel, the District Court ordered a psychological evaluation and
conducted a thorough competency hearing, at which Fox testified about his understanding of the
charges and proceedings against him. At the hearing, the District Court stated that it had reviewed
“in detail” a report prepared by a Bureau of Prisons (“BOP”) psychologist that concluded, among
other things, that (1) Fox possessed a rational and factual understanding of the proceedings against
him; (2) Fox had a capacity to assist legal counsel in his defense; and (3) Fox could rationally make
decisions regarding legal strategy. Relying on that report, as well as Fox’s own testimony, the
District Court found that Fox was indeed “competent to stand trial.” Appellant’s App’x at 47-48.

         As the trier of fact, the District Court was well within its province to give weight to the BOP
psychologist’s opinion, see United States v. Zhou, 428 F.3d 361, 380 (2d Cir. 2005) (holding that a court
evaluating competency may reasonably “rely on the expertise of a forensic psychologist associated
with the BOP,” who is “presumably familiar with patients similarly situated”), and did not clearly err

         2
            Fox also claims that the District Court plainly erred by engaging in impermissible judicial fact-finding
regarding the existence of his prior conviction, in violation of his Sixth Amendment right to trial by jury. We disagree.
See Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998) (holding that, where a statute provides for an enhanced
penalty based on a defendant’s prior conviction, the fact of conviction is a sentencing factor to be determined by the
court rather than a jury); see also Alleyne v. United States, 133 S. Ct. 2151, 2160 & n.1 (2013) (concluding that a fact that
increases a mandatory minimum sentence, such as brandishing of a firearm, must be found by a jury, but declining to
revisit the holding in Almendarez-Torres). In any event, because Fox admitted that he was previously convicted of a drug
felony, there was no need for “fact-finding” of any kind, judicial or otherwise. To the extent the record reflects any
confusion about the exact date of the prior conviction  i.e., whether it was February 17, 1993 or 1994  Fox never
challenged the fact of the prior felony conviction, and the dates were adequately reconciled without objection at the plea
hearing.
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in relying as well on its own observations of Fox’s conduct in the courtroom when assessing the
defendant’s level of rationality and understanding. Accordingly, the District Court’s competency
determination provides no ground for reversal.

          4. Denial of Request for New Counsel

          Last, Fox contends that the District Court violated his Sixth Amendment right to counsel of
his choice when it refused to appoint substitute counsel a third time. A district court’s denial of a
request to appoint new counsel is reviewed for abuse of discretion, United States v. Hsu, 669 F.3d 112,
122 (2d Cir. 2012), and we generally consider four factors in evaluating the exercise of that
discretion: “(1) whether the defendant’s motion for new counsel was timely; (2) whether the district
court adequately inquired into the matter; (3) whether the conflict between defendant and attorney
‘was so great that it resulted in a total lack of communication preventing an adequate defense;’ and
(4) ‘whether the defendant substantially and unjustifiably contributed to the breakdown in
communication.’” Id. at 122-23 (quoting United States v. John Doe No. 1, 272 F.3d 116, 122-23 (2d Cir.
2001)).

          Here, the District Court acted well within its discretion when it refused to allow yet another
substitution of appointed counsel. When Fox applied for new counsel, the District Court had
already appointed two different attorneys to represent him over the course of the previous year, and
Fox’s scheduled trial date was only five months away. In addition, Fox’s complaints about his
counsel’s performance  namely, that counsel failed to provide him with documents, that he was
always in a hurry, and that he was having trouble understanding Fox’s Jamaican accent  were not so
substantial that they “resulted in a total lack of communication preventing an adequate defense.”
Hsu, 669 F.3d at 123 (internal quotation marks omitted). Accordingly, it was not an abuse of
discretion for the District Court to deny Fox’s request in the interest of avoiding unnecessary delays.

                                                    ***

       We have considered all of Fox’s other arguments on appeal and find them to be without
merit. Accordingly, the judgment of the District Court is AFFIRMED.
                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




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