09-2927-cr
United States v. March

                                      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 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the twenty-eighth day of June, two thousand and ten.

PRESENT:

          RALPH K. WINTER,
          JOSÉ A. CABRANES,
          RICHARD C. WESLEY ,
                               Circuit Judges.
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UNITED STATES OF AMERICA ,

                     Appellee,

                     -v.-                                                                  No. 09-2927-cr

FREDERICK MARCH , also known as Frederick Morris Gordon,
also known as Winston March,

                     Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                       Lee Ginsberg, Freeman Nooter & Ginsberg, New York,
                                                               NY.

FOR APPELLEE:                                                  Alexander A. Solomon, Assistant United States Attorney
                                                               (Benton J. Campbell, United States Attorney, Emily
                                                               Berger, Assistant United States Attorney, of counsel),
                                                               United States Attorney’s Office for the Eastern District of
                                                               New York, Brooklyn, NY.

      Appeal from a July 7, 2009 judgment of the United States District Court for the Eastern District
of New York (Carol B. Amon, Judge).

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

        Defendant-appellant Frederick March (“defendant” or “March”) appeals from a judgment of
conviction entered on July 7, 2009, after pleading guilty to conspiracy to distribute cocaine, in violation
of 21 U.S.C. §§ 846(a)(1) and 841(b)(1)(A)(ii)(II), possession of cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II) and bail jumping, in violation of 18 U.S.C. §§
3146(a)(1), (b)(1)(A)(I), and (b)(2). The District Court sentenced March principally to a 135-month term
of imprisonment and five years of supervised release on the cocaine charges, and a thirty-six month term
of imprisonment on the bail jumping charge, to run concurrently. We assume the parties’ familiarity
with the underlying facts and procedural history.

        On appeal, defendant makes two arguments. First, he argues that the District Court “abused its
discretion” in denying his motion to withdraw his guilty plea to the cocaine charges. Specifically, March
contends that the District Court’s conclusion that his plea was knowing and voluntary based on its
determination that his former counsel’s testimony was credible was clearly erroneous. Second, March
argues that the District Court erred in rejecting his claim that his former counsel’s ineffective assistance
invalidated his guilty plea. Both claims are without merit.

          We review a district court’s decision to deny a motion to withdraw a plea for “abuse of
discretion.” United States v. Doe, 537 F.3d 204, 211 (2d Cir. 2008). “A district court abuses its discretion
if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact.” United
States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005) (quotation marks omitted). “A finding is clearly
erroneous when although there is evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been committed.” United States v. Iodice, 525
F.3d 179, 185 (2d Cir. 2008) (quotation marks omitted).

         “Where a motion to withdraw a plea is premised on involuntariness, the defendant must raise a
significant question about the voluntariness of the original plea.” Doe, 537 F.3d at 211 (quotation marks
omitted). On May 4, 2009, the District Court conducted a hearing as to the voluntariness of March’s
plea at which March’s former counsel was the sole witness. The District Court concluded that the
counsel’s testimony was credible and that March had therefore failed to offer “a fair and just reason” to
withdraw his plea. See Fed. R. Crim. P. 11(d)(2)(B) (“A defendant may withdraw a plea of guilty . . . after
the court accepts the plea, but before it imposes sentence if the defendant can show a fair and just
reason for requesting the withdrawal.”). A district court’s credibility determination is entitled to
“particularly strong deference.” Iodice, 525 F.3d at 185 (citation omitted). After an independent review
of the record, we cannot say that the District Court, which benefitted from the direct testimony of the
former counsel, “abused its discretion” in denying defendant’s motion to withdraw his plea.

       We review a district court’s determination of a claim of ineffective assistance de novo. See Arteca,
411 F.3d at 320. To succeed on an ineffective assistance of counsel claim a defendant must show that
“1) counsel’s performance fell below an objective standard of reasonableness according to prevailing
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professional norms, and 2) . . . that but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984)). Defendant
must therefore show that there is a “reasonable probability” that but for counsel’s errors, “he would not
have [pleaded] guilty.” Id. (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

        March affirmed under oath the adequacy of his former counsel’s representation, and stated that
he was satisfied and had sufficient time to discuss the charges and his decision to plead guilty. “The fact
that a defendant has a change of heart prompted by his reevaluation of either the Government’s case
against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of a
plea.” Doe, 537 F.3d at 212 (quotation marks omitted). We therefore conclude, for substantially the
same reasons stated by the District Court, J.A. at 174-81 (Hr’g. Tr., May 8, 2009), that inadequate
representation did not invalidate defendant’s plea or provide a basis for which it might be withdrawn.



                                            CONCLUSION

        We have considered each of defendant’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the judgment of the District Court.

                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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