         10-1170-cr
         United States v. Gunn


                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of April, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PIERRE N. LEVAL,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                        10-1170-cr
17
18       RODERICK GUNN, also known as Tyrone
19       Coleman,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:            Richard Palma, Law Office of Richard
24                                 Palma, New York, New York.
25
26
27       FOR APPELLEE:             John J. O’Donnell, Assistant United
28                                 States Attorney (Harry A. Chernoff,
29                                 Assistant United States Attorney, on the
 1                     brief), for Preet Bharara, United States
 2                     Attorney for the Southern District of New
 3                     York.
 4
 5        Appeal from a judgment of conviction in the United
 6   States District Court for the Southern District of New York
 7   (Pauley, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Defendant-Appellant Roderick Gunn (“Gunn”) appeals on
14   multiple grounds his conviction and sentence for (1)
15   conspiring to commit robberies of narcotics dealers, in
16   violation of 18 U.S.C. § 1951; (2) committing a robbery of a
17   narcotics dealer, in violation of 18 U.S.C. §§ 1951, 1952;
18   (3) carrying and brandishing of firearms during and in
19   relation to the crimes of violence, in violation of 18
20   U.S.C. §§ 924(c)(1)(A)(ii) and (c)(2); (4) conspiring to
21   distribute marijuana, in violation of 21 U.S.C. § 846; and
22   (5, 6) two counts of illegal firearms possession, each in
23   violation of 18 U.S.C. § 922(g)(5). On December 19, 2003,
24   Gunn pleaded guilty to the above-listed counts pursuant to a
25   cooperation agreement; however, after the Government
26   discovered that Gunn had lied during his proffer sessions,
27   Gunn moved (twice) to withdraw his guilty plea. The
28   district court denied both of Gunn’s motions, and on March
29   17, 2010, the district court sentenced Gunn to an aggregate
30   term of 141 months’ imprisonment, followed by a term of five
31   years’ supervised release, and imposed a $600 mandatory
32   special assessment.
33
34        We assume the parties’ familiarity with the underlying
35   facts, the procedural history, and the issues presented for
36   review.
37
38   [1] Because Gunn raises for the first time on appeal his
39   challenge that the Hobbs Act and narcotics conspiracy
40   convictions lack a sufficient factual basis, we review for
41   plain error. Under plain error review, “an appellate court
42   may, in its discretion, correct an error not raised at trial
43   only where the appellant demonstrates that (1) there is an
44   ‘error’; (2) the error is ‘clear or obvious, rather than

                                  2
 1   subject to reasonable dispute’; (3) the error ‘affected the
 2   appellant’s substantial rights, which in the ordinary case
 3   means’ it ‘affected the outcome of the district court
 4   proceedings’; and (4) ‘the error seriously affect[s] the
 5   fairness, integrity or public reputation of judicial
 6   proceedings.’” United States v. Marcus, 130 S. Ct. 2159,
 7   2164 (2010) (quoting Puckett v. United States, 129 S. Ct.
 8   1423, 1429 (2009)). To “affect substantial rights,” an
 9   error must have been prejudicial and affected the outcome of
10   the district court proceedings. United States v. Olano, 507
11   U.S. 725, 734 (1993).
12
13        In Hobbs Act robbery conspiracy cases, the Government
14   must establish that the defendant agreed with others to
15   “obstruct, delay, or affect interstate commerce, by
16   unlawfully taking property ‘by means of actual or threatened
17   force, or violence, or fear of injury.’” United States v.
18   Santos, 449 F.3d 93, 97 (2d Cir. 2006) (quoting statutory
19   language of 18 U.S.C. § 1951(a)-(b)). The elements that the
20   Government must establish are the existence of a conspiracy
21   to commit a robbery that would have affected, or did affect,
22   interstate commerce, and the defendant’s knowing
23   participation in that conspiracy. Id. Where the charged
24   offense is a substantive Hobbs Act robbery, the Government
25   must prove that the defendant committed or attempted to
26   commit a robbery as described above, or aided and abetted
27   others in doing so.
28
29        The burden on the Government to establish the nexus to
30   interstate commerce is minimal. See United States v. Elias,
31   285 F.3d 183, 188 (2d Cir. 2002). “[I]f the defendant[’s]
32   conduct produces any interference with or effect upon
33   interstate commerce, whether slight, subtle, or even
34   potential, it is sufficient to uphold a prosecution under
35   the Hobbs Act.” United States v. Perrotta, 313 F.3d 33, 36
36   (2d Cir. 2002) (internal quotation marks omitted). Gunn
37   argues that the only factual basis for the conviction is
38   that he participated in a robbery of a narcotics dealer in
39   the Bronx. However, at the plea hearing, Gunn admitted that
40   he conspired with others “to assist them in robbing other
41   individuals of money and property in a fashion or manner
42   which impacted upon interstate commerce as that term has
43   been constructed by the courts.” Gunn’s admission is
44   sufficient to establish the de minimis effect on interstate

                                  3
 1   commerce necessary for Hobbs Act jurisdiction. See, e.g.,
 2   United States v. Needham, 604 F.3d 673, 680 (2d Cir. 2010)
 3   (“[A]ll that need be shown is the possibility or potential
 4   of an effect on interstate commerce, not an actual effect.”
 5   (internal quotation marks omitted)).
 6
 7        The elements of a conspiracy to distribute or possess
 8   with intent to distribute narcotics under 21 U.S.C. § 846
 9   are “the existence of [such] a conspiracy and the
10   defendant’s willful joining it.” United States v. Story,
11   891 F.2d 988, 992 (2d Cir. 1989). In addition, where the
12   indictment charges an aggravated narcotics offense that
13   carries an enhanced penalty based on a particular drug type
14   and quantity pursuant to 21 U.S.C. § 841(b), “drug quantity
15   must be deemed an element.” United States v. Gonzalez, 420
16   F.3d 111, 129 (2d Cir. 2005). Gunn contends that the charge
17   did not satisfy an interstate commerce nexus; but there is
18   no requirement that the Government establish an interstate
19   commerce nexus in order to support a conviction for
20   narcotics conspiracy. In his plea allocution, Gunn admitted
21   that “during the time period of 2002, 2003, I conspired with
22   others to possess and distribute marijuana” and that “[o]n
23   two occasions during 2002 and 2003, I sold 16 pounds of
24   marijuana.” This was more than adequate to support his
25   conviction for conspiracy to distribute marijuana.
26
27   [2] We review the district court’s denial of a motion to
28   withdraw a guilty plea under an abuse of discretion
29   standard. United States v. Carreto, 583 F.3d 152, 157 (2d
30   Cir. 2009). A defendant must “show a fair and just reason
31   for requesting the withdrawal” of his guilty plea. Id. at
32   157 (internal quotation mark omitted).
33
34        Rule 11(d)(2)(B) provides that a “defendant may
35   withdraw a plea of guilty . . . after the court accepts the
36   plea, but before it imposes sentence if . . . the defendant
37   can show a fair and just reason for requesting the
38   withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “A defendant has
39   no absolute right to withdraw his plea of guilty.” United
40   States v. Williams, 23 F.3d 629, 634 (2d Cir. 1994). “In
41   general, to determine whether the defendant has shown a
42   ‘fair and just reason’ to justify withdrawal, a district
43   court considers, inter alia: (1) whether the defendant has
44   asserted his or her legal innocence in the motion to

                                  4
 1   withdraw the guilty plea; (2) the amount of time that has
 2   elapsed between the plea and the motion (the longer the
 3   elapsed time, the less likely withdrawal would be fair and
 4   just); and (3) whether the government would be prejudiced by
 5   a withdrawal of the plea.” United States v. Schmidt, 373
 6   F.3d 100, 102-03 (2d Cir. 2004).
 7
 8        Gunn has failed to show that his counsel’s assistance
 9   was ineffective. See Strickland v. Washington, 466 U.S.
10   668, 688, 692 (1984) (holding that to establish ineffective
11   assistance of counsel, a defendant must satisfy a two-part
12   test: (1) counsel’s representation must fall “below an
13   objective standard of reasonableness . . . under prevailing
14   professional norms,” and (2) this deficiency must have
15   prejudiced his defense). “A court considering a claim of
16   ineffective assistance must apply a ‘strong presumption’
17   that counsel’s representation was within the ‘wide range’ of
18   reasonable professional assistance” and “[t]he challenger’s
19   burden is to show ‘that counsel made errors so serious that
20   counsel was not functioning as the “counsel” guaranteed the
21   defendant by the Sixth Amendment.’” Harrington v. Richter,
22   131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at
23   687-89). To establish prejudice, the defendant must prove
24   that “there is a reasonable probability that, but for
25   counsel’s errors, he would not have pleaded guilty and would
26   have insisted on going to trial.” Hill v. Lockhart, 474
27   U.S. 52, 59 (1985).
28
29        As the district court properly recognized, prior to his
30   guilty plea, Gunn met with the Government for five proffer
31   sessions, and Gunn’s attorney was present at each meeting.
32   Moreover, during the Rule 11 colloquy, the district court
33   established that Gunn had “a full opportunity to discuss
34   [his] case [with his counsel] and to discuss the
35   consequences of entering a plea of guilty,” and that Gunn
36   was satisfied with his counsel’s representation. With these
37   statements, Gunn cannot overcome the heavy burden that his
38   plea was involuntary, nor can he demonstrate to this Court
39   that the district court abused its discretion in denying
40   Gunn’s motion.
41
42   [3] We review a district court’s sentencing decision for
43   reasonableness. See United States v. Booker, 543 U.S. 220,
44   260-62 (2005). Reasonableness has both procedural and

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 1   substantive dimensions. See United States v.
 2   Avello-Alvarez, 430 F.3d 543, 545 (2d Cir. 2005) (citing
 3   United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir.
 4   2005)). See generally United States v. Cavera, 550 F.3d
 5   180, 189-90 (2d Cir. 2008) (en banc), cert. denied, 129 S.
 6   Ct. 2735 (2009) (citations omitted).
 7
 8        Gunn argues that the sentence is procedurally and
 9   substantively erroneous because the court refused to credit
10   Gunn for his cooperation with the Government. However, the
11   district court considered Gunn’s request for leniency; both
12   parties submitted written memoranda on this subject; and it
13   was discussed at oral argument on two separate days.
14   Although the district court recognized that Gunn had
15   provided useful information to the Government, it was
16   “deeply troubled” that Gunn had withheld his commission of
17   some of his most serious past crimes, especially Gunn’s
18   involvement in a felony murder, additional robberies, and
19   cocaine distribution. The district court correctly
20   considered the need for Gunn’s sentence to “afford adequate
21   deterrence” to criminal conduct. 18 U.S.C. § 3553(a)(2)(B).
22   Thus, the district court properly concluded that Gunn’s
23   untruthfulness outweighed his failed efforts at cooperation.
24   Accordingly, the sentence imposed (which was at the low end
25   of the Guideline range) was substantively reasonable under
26   this Court’s jurisprudence.
27
28        We have considered Gunn’s remaining arguments and find
29   them to be without merit. For the foregoing reasons, the
30   judgment of conviction is AFFIRMED.
31
32
33
34                              FOR THE COURT:
35                              CATHERINE O’HAGAN WOLFE, CLERK
36
37




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