13-1987-cr
United States v. Scott

                           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
18th day of June two thousand fourteen.

Present:    ROSEMARY S. POOLER,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                               Appellee,

                         -v-                                               13-1987-cr

DANIEL SCOTT,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:       Malvina Nathanson, The Law Office of Malvina Nathanson, New
                               York, N.Y.

Appearing for Appellee:        Christopher J. DiMase, Assistant United States Attorney (Preet
                               Bharara, United States Attorney for the Southern District of New
                               York, Justin Anderson, Brian A. Jacobs, Assistant United States
                               Attorneys, on the brief), New York, N.Y.

       Appeal from the United States District Court for the Southern District of New York
(Griesa, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Daniel Scott appeals from a final judgment of conviction filed May 2, 2013 in the United
States District Court for the Southern District of New York (Griesa, J.), following his guilty plea
to one count of conspiracy to commit armed robbery in violation of 18 U.S.C. § 1951, and one
count of possession of a weapon by a prior felon, in violation of 18 U.S.C. §§ 922(g)(1) &
924(e). The district court denied Scott’s motion to withdraw his guilty plea, and sentenced Scott
to concurrent terms of 188 months of imprisonment on each count, concurrent supervised release
terms of three and five years, and $200 in special assessments.

       On appeal, appellant asserts primarily that the district court abused its discretion in
denying his motion to withdraw his guilty plea. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        We review a district court’s denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Gonzalez, 647 F.3d 41, 57 (2d Cir. 2011). Under Federal Rule of
Criminal Procedure 11, a defendant may withdraw his guilty plea before the district court
imposes a sentence if “the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining whether the defendant has met this
standard, district courts “should consider, inter alia: (1) the amount of time that has elapsed
between the plea and the motion; (2) whether the defendant has asserted a claim of legal
innocence; and (3) whether the government would be prejudiced by a withdrawal of the plea.”
United States v. Doe, 537 F.3d 204, 210 (2d Cir. 2008).

        “A defendant is not entitled to an evidentiary hearing as a matter of right whenever he
seeks to withdraw his guilty plea.” United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir.
1992). “Although the standard to be applied in granting a hearing is less rigorous than the
standard for granting the motion to withdraw the plea, the defendant must present some
significant questions concerning the voluntariness or general validity of the plea to justify an
evidentiary hearing.” Id. (citation omitted). “No hearing need be granted when the allegations on
a motion to withdraw a guilty plea before sentencing merely contradict the record, are inherently
incredible, or are simply conclusory.” Id.

        Applying these standards, we conclude that the district court acted well within its
discretion in denying Scott’s motion to withdraw his guilty plea without holding an evidentiary
hearing. As recognized by the court, Scott’s assertions that his plea was involuntary are belied by
his own statements, made under oath during his plea allocution, representing that his plea was
knowing and voluntary and was supported by a factual basis, and confirming that he understood
the specific rights he was giving up by pleading guilty.

        It was also not an abuse of discretion for the district court to have concluded that Scott’s
claims of coercion—that is, that the FBI told his wife he would be sure to “get 45 years,” and
that she could be charged with a crime—were not credible. As an initial matter, any statement by
an FBI agent that Scott would “get 45 years” would have been an accurate description of the risk
Scott would have taken in going to trial, and thus cannot provide the basis for withdrawing his
guilty plea. Accord Doe, 537 F.3d at 212 (“This statement was neither a threat, a

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misrepresentation, nor a promise unrelated to the prosecutor’s business. It was, rather, a true
recital of the scenario that would play out should the defendant choose to proceed to trial.”
(citation omitted)). With respect to the alleged threats that his wife would be “charge[d] . . . with
a crime,” the district court’s decision not to credit this vague and conclusory assertion cannot be
said to have been a clearly erroneous factual finding, nor an abuse of discretion, particularly in
light of Scott’s statements at his plea allocution, defense counsel’s representation that he did not
believe he could make a plea withdrawal motion on Scott’s behalf “in good faith,” and the
district court’s docket in this case, which reflects that the parties had been engaged in ongoing
plea negotiations for many months prior to Scott’s decision to plead guilty.

        Finally, though Scott emphasizes on appeal how quickly he had moved to withdraw his
plea after the hearing, that is only one of several factors a district court should consider, see Doe,
537 F.3d at 210-11, and it alone does not create a question as to the voluntariness of Scott’s plea.


      We have considered Scott’s remaining arguments and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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