     12-4441-cr
     United States v. Coke

                                   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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   24th day of November, two thousand fourteen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               BARRINGTON D. PARKER,
 7               RICHARD C. WESLEY,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                   Appellee,
14
15                            v.                                           12-4441-cr
16
17   CHRISTOPHER MICHAEL COKE, AKA President, AKA
18   Michael Christopher Coke, AKA Paul Christopher Scott,
19   AKA Shortman, AKA Duddus, AKA Presi, AKA General,
20
21                           Defendant-Appellant.1
22   __________________________________________
23
24   Appearing for Appellant:        Jane S. Meyers, Brooklyn, N.Y.
25
26   Appearing for Appellee:         John T. Zach, Assistant United States Attorney for the Southern
27                                   District of New York (Preet Bharara, United States Attorney, Brent
28                                   S. Wible, Assistant United States Attorney, on the brief), New
29                                   York, N.Y.
30
31


             1
                 The Clerk of Court is directed to amend the caption as above.
 1   Appeal from the United States District Court for the Southern District of New York (Patterson,
 2   J.).
 3
 4
 5        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 6   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED IN
 7   PART, VACATED AND REMANDED IN PART.
 8
 9
10            Christopher Michael Coke appeals from the June 13, 2012 judgment of the United States
11   District Court for the Southern District of New York (Patterson, J.). Coke pleaded guilty to one
12   count of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), and one count of
13   conspiracy to commit assault in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(6). The
14   district court sentenced Coke to 276 months’ imprisonment and an aggregate term of four years’
15   supervised release. We assume the parties’ familiarity with the underlying facts, procedural
16   history, and specification of issues for review.
17
18           On appeal, Coke for the first time contends that his plea allocution did not provide a
19   sufficient factual basis for his guilty plea pursuant to Federal Rule of Criminal Procedure
20   11(b)(3). See Fed. R. Crim. P. 11(b)(3) (“Before entering judgment on a guilty plea, the court
21   must determine that there is a factual basis for the plea.”).
22
23           Where a defendant failed to object on the basis of a Rule 11 violation before the district
24   court, we review the claim for plain error under Rule 52(b) of the Federal Rules of Criminal
25   Procedure. See United States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). “Plain error review
26   requires a defendant to demonstrate that (1) there was error, (2) the error was plain, (3) the error
27   prejudicially affected his substantial rights, and (4) the error seriously affected the fairness,
28   integrity or public reputation of judicial proceedings.” United States v. Youngs, 687 F.3d 56, 59
29   (2d Cir. 2012) (internal quotation marks omitted). In order to establish that a Rule 11 violation
30   affected substantial rights, the defendant must also show “that there is a reasonable probability
31   that, but for the error, he would not have entered the plea.” United States v. Vaval, 404 F.3d 144,
32   151 (2d Cir. 2005) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004))
33   (internal quotation marks omitted).
34
35           Rule 11(b)(3) requires the district court to “assure itself simply that the conduct to which
36   the defendant admits is in fact an offense under the statutory provision under which he is
37   pleading guilty.” United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997) (discussing prior
38   version of Rule 11(b)). To comply with Rule 11(b)(3) “no specific dialogue [] must take place”
39   at the plea allocution; the district court “may rely on [a] defendant’s own admissions,
40   information from the government, or other information appropriate to the specific case.” United
41   States v. Andrades, 169 F.3d 131, 136 (2d Cir. 1999). Even “a reading of the indictment to the
42   defendant coupled with his admission of the acts described in it may provide a sufficient factual
43   basis for a guilty plea where the charge is uncomplicated, the indictment detailed and specific,
44   and the admission unequivocal.” United States v. Garcia, 587 F.3d 509, 518 (2d Cir. 2009)
45   (internal quotation marks omitted).
46
47

                                                      2
 1           We find that the district court did not commit plain error in accepting Coke’s guilty plea.
 2   Here, the district court correctly determined that an adequate factual basis supported Coke’s plea
 3   of guilty to conspiracy to commit assault in aid of racketeering. See 18 U.S.C. § 1959(a)(6); see
 4   also N.Y. Penal Law § 120.05 (defining assault in the second degree). In his prepared allocution
 5   Coke stated that he “participated in a conspiracy to assault a person who owed a drug related
 6   debt to a member of [the racketeering enterprise] which resulted in his injury.” When asked by
 7   the district court “what was done or what was agreed upon to be done,” Coke replied that a
 8   co-conspirator had “used a knife and stabbed” a “person that owe (sic) another person for his
 9   marijuana.” The district court further inquired whether “it was agreed that [the co-conspirator]
10   would use a knife and stab [the victim]” and whether the attack was “intended to commit serious
11   injury”; Coke answered in the affirmative to both questions.
12
13           We reject Coke’s contention that his allocution was insufficient to establish a factual
14   basis for his guilty plea. To the extent that Coke argues that the sufficiency of his plea turns on
15   whether the harm actually inflicted falls within the definition of physical injury under New York
16   law, he misapprehends the charged conduct. See N.Y. Penal Law § 10.00(9) (defining “physical
17   injury” as “impairment of physical condition or substantial pain”). Coke pleaded guilty to
18   conspiracy, not to the underlying assault offense. “Conspiracy is a crime that is separate and
19   distinct from the substantive offense that is the object of the conspiracy. Because it is the
20   conspiratorial agreement itself that is prohibited, the illegality does not depend on the actual
21   achievement of the coconspirators’ goal. . . . What matters in a conspiracy prosecution is
22   whether the defendants agreed to commit the underlying offense, not whether their conduct
23   would actually have constituted that offense.” United States v. Rosa, 17 F.3d 1531, 1543 (2d Cir.
24   1994) (internal citations omitted). Because Coke’s allocution admitted to his participation in the
25   conspiracy to commit assault, his sufficiency argument necessarily fails.
26
27           However, we agree with Coke that the district court erred in sentencing him to two terms
28   of two years’ supervised release to run consecutively following his term of imprisonment.
29   Because conspiracy to commit assault in aid of racketeering is a class E felony, see 18 U.S.C. §§
30   1959(a)(6), 3559(a)(5), the district court was permitted to impose a maximum term of supervised
31   release of no more than one year for Coke’s conviction under count two, id. § 3583(b)(3). In
32   addition, 18 U.S.C. § 3624(e) provides that, “[t]he term of supervised release commences on the
33   day the person is released from imprisonment and runs concurrently with any Federal, State, or
34   local term of probation or supervised release or parole for another offense to which the person is
35   subject or becomes subject during the term of supervised release.” Id. § 3624(e) (emphasis
36   added). The parties agree that the district court committed plain error. We therefore remand
37   Coke’s case to the district court to (1) impose a term of supervised release under count two
38   within the statutory limit and (2) specify that the terms of supervised release are to run
39   concurrently. See id. § 3742(f)(1) (where the “court of appeals determines that . . . the sentence
40   was imposed in violation of law . . . , the court shall remand the case for further sentencing
41   proceedings”).
42
43
44
45

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1           We have considered the remainder of Coke’s arguments and find them to be without
2   merit. Accordingly, Coke’s conviction is AFFIRMED; his sentence is VACATED, insofar as it
3   requires him to serve consecutive two-year terms of supervised release, and REMANDED for
4   resentencing consistent with this order.
5
6
7                                                   FOR THE COURT:
8                                                   Catherine O’Hagan Wolfe, Clerk
9




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