     08-4246-cr
     United States v. Baston



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
     AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
     CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
     MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).”
     UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
     WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
     PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
     WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
     AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
     DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 9th day of December, two thousand                    nine.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PETER W. HALL,
 9                              Circuit Judge,
10                J. GARVAN MURTHA,
11                              District Judge. *
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                -v.-                                                   08-4246-cr
18       WILSON JAMES BASTON, JR., also known
19       as Will James, also known as Wil
20       James,


                *
               J. Garvan Murtha, Senior District Judge of the United
         States District Court for the District of Vermont, sitting
         by designation.

                                                  1
 1            Defendant-Appellant.
 2   - - - - - - - - - - - - - - - - - - - -X
 3
 4   APPEARING FOR APPELLANT:   J. SCOTT PORTER, Seneca Falls,
 5                              New York.
 6
 7   APPEARING FOR APPELLEE:    GLEN G. McGORTY (Preet Bharara
 8                              and Daniel A. Braun, on the
 9                              brief), United States Attorney’s
10                              Office for the Southern District
11                              of New York, New York, New York.
12
13        Appeal from a judgment of the United States District
14   Court for the Southern District of New York (Baer, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED.
19
20        Wilson Baston appeals a judgment sentencing him to
21   seventeen concurrent terms of 135 months imprisonment after
22   he pled guilty to multiple counts of mail and wire fraud.
23   Baston argues on appeal that his sentence should be vacated
24   both because the government breached the plea agreement and
25   because his own trial counsel provided constitutionally
26   ineffective assistance. He also contends that the
27   restitution order is improper.
28
29        We assume the parties’ familiarity with the underlying
30   facts, the procedural history, and the issues presented for
31   review.
32
33   [1] Baston argues that the government breached the terms of
34   the Plea Agreement in its sentencing memorandum and at the
35   sentencing hearing. We “review interpretations of plea
36   agreements de novo and in accordance with principles of
37   contract law.” United States v. Griffin, 510 F.3d 354, 360
38   (2d Cir. 2007) (quoting United States v. Riera, 298 F.3d
39   128, 133 (2d Cir. 2002)). But where--as here--a defendant
40   fails to preserve an objection to the government’s purported
41   breach of a plea agreement, plain error review applies.
42   Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).
43   Plain error review allows (but does not require) vacatur or
44   reversal if the defendant proves: (1) error; (2) that is
45   “clear or obvious, rather than subject to reasonable
46   dispute”; (3) that affected substantial rights, “which in

                                  2
 1   the ordinary case means . . . that it affected the outcome
 2   of the district court proceedings”; and (4) that “seriously
 3   affect[s] the fairness, integrity or public reputation of
 4   judicial proceedings.” Id. at 1429 (internal quotation
 5   marks omitted). Thus, our ability to remedy the error is
 6   “strictly circumscribed.” Id. at 1428. “Meeting all four
 7   prongs is difficult, ‘as it should be.’” Id. at 1429
 8   (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83
 9   n.9 (2004)).
10
11        Baston asserts that the government breached when it
12   adopted a higher loss figure in the Revised Pre-Sentence
13   Report (“PSR”) and, separately, when it responded to an
14   inquiry of the court at sentencing by disclaiming any reason
15   to question the accuracy of the revised loss figures.
16   Regarding the sentencing memorandum, it is doubtful that the
17   government’s memorandum constitutes a breach of any term of
18   the Plea Agreement. By the time of the government’s
19   memorandum, Baston’s own lawyer had conceded the accuracy of
20   the Revised PSR. It is certainly possible (and Baston has
21   not convincingly argued otherwise) that the district court
22   would have imposed the sentence called for in the Revised
23   PSR on the basis of Baston’s concession alone, regardless of
24   the government’s statement in its memorandum.
25
26        Regarding the sentencing hearing, the government’s
27   conduct in this case closely parallels the conduct at issue
28   in Riera. And for the same reasons that the court found no
29   error there, see 298 F.3d at 134, we find no error here.
30
31   [2] Baston also contends that his trial counsel provided
32   constitutionally ineffective assistance by conceding the
33   accuracy of the Revised PSR and by failing to scrutinize and
34   challenge the loss calculations in the Revised PSR.
35   Ineffective assistance claims are governed by the familiar
36   standard enunciated in Strickland v. Washington, 466 U.S.
37   668 (1984). “When faced with a claim for ineffective
38   assistance of counsel on direct appeal,” this Court may:
39   “(1) decline to hear the claim, permitting the appellant to
40   raise the issue . . . [in] . . . [a] habeas corpus
41   [petition] . . . ; (2) remand the claim to the district
42   court for necessary factfinding; or (3) decide the claim on
43   the record before [the Court].” United States v. Morris,
44   350 F.3d 32, 39 (2d Cir. 2003). Though these three options
45   remain available to us, there is a “baseline aversion to
46   resolving ineffectiveness claims on direct review,” id.

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 1   (quoting United States v. Salameh, 152 F.3d 88, 161 (2d Cir.
 2   1998)), and the Supreme Court has stated a preference that
 3   ineffective assistance claims be resolved in a habeas
 4   petition rather than on direct appeal. Massaro v. United
 5   States, 538 U.S. 500, 504 (2003). Adhering to this
 6   guidance, we dismiss Baston’s ineffective assistance claims
 7   without prejudice to their being re-filed as part of any
 8   future habeas proceeding.
 9
10   [3] Baston also argues that the amount of restitution
11   ordered by the district court is improper and should be
12   vacated. We review an order of restitution for abuse of
13   discretion, and we will find error under this standard only
14   if the restitution order “rests on an error of law, a
15   clearly erroneous finding of fact, or otherwise cannot be
16   located within the range of permissible decisions.” United
17   States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009)
18   (internal quotation marks omitted). Because Baston did not
19   object at sentencing to the restitution amount, we review
20   his claim for plain error. See United States v. Nucci, 364
21   F.3d 419, 421 (2d Cir. 2004). Baston fails to articulate a
22   theory of error that is sufficiently “plain” to withstand
23   plain error review.
24
25        Finding no merit in Baston’s remaining arguments, we
26   hereby AFFIRM the judgment of the district court.
27
28
29                              FOR THE COURT:
30                              CATHERINE O’HAGAN WOLFE, CLERK
31                              By:
32
33
34                              ___________________________




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