09-4392-cr
USA v. Acevedo-Colon

                               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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 28th day of March, two thousand eleven.

Present:      ROBERT A. KATZMANN,
              DENNY CHIN,
                         Circuit Judges,
              JOHN GLEESON,
                         District Judge.*

____________________________________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                              - v. -                        No. 09-4392-cr

CELSO ACEVEDO-COLON,

                     Defendant-Appellant.**
____________________________________________________________

For Defendant-Appellant:                             JEANNETTE WEISS (Raymond S. Sussman, on
                                                     the brief), Law Office of Raymond S. Sussman,
                                                     Brooklyn, N.Y.



        *
       The Honorable John Gleeson, United States District Judge for the Eastern District of
New York, sitting by designation.
        **
             The Clerk of the Court is directed to amend the official caption as set forth above.
For Appellee:                                     WILLIAM J. HARRINGTON, Assistant United
                                                  States Attorney (Katherine Polk Failla,
                                                  Assistant United States Attorney, on the brief),
                                                  for Preet Bharara, United States Attorney for the
                                                  Southern District of New York, New York,
                                                  N.Y.


        Appeal from the United States District Court for the Southern District of New York
(Batts, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Celso Acevedo-Colon appeals from a judgment of conviction,

entered on September 21, 2009, in the United States District Court for the Southern District of

New York (Batts, J.), following a guilty plea for robbery and conspiracy to commit robbery in

violation of the Hobbs Act, 18 U.S.C. § 1951, and discharge of a firearm in furtherance of the

robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (hereinafter “Restaurant Robbery

Indictment”), and for conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C.

§ 1951(a), and conspiracy to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 812, 841(a), 841(b)(1)(A) and 846 (hereinafter “Cocaine Robbery Indictment”).1 We

assume the parties’ familiarity with the facts and procedural history of the case.

       On February 16, 2007, Acevedo-Colon pleaded guilty to both the Restaurant Robbery

and Cocaine Robbery Indictments. On appeal, the defendant argues that his sentence should be

vacated and the case remanded for resentencing in light of this Court’s intervening decision in


       1
        The defendant was identified as “Confesor Liriano” in the Restaurant Robbery
Indictment, and as “Celso Acevedo-Colon” in the Cocaine Robbery Indictment. Since the
defendant challenges the interstate commerce element of the Hobbs Act count charged in the
Cocaine Robbery Indictment, we refer to him as “Celso Acevedo-Colon.”

                                                 2
United States v. Parkes, 497 F.3d 220 (2d Cir. 2007). Parkes, which concluded that the

interstate commerce element of the Hobbs Act must be decided by a jury, abrogated the

presumption available at the time of Acevedo-Colon’s guilty plea that a robbery involving any

type of narcotics establishes the interstate commerce element necessary for Hobbs Act

jurisdiction. Id. at 229-30.

        Under Rule 11 of the Federal Rules of Criminal Procedure, “[b]efore entering judgment

on a guilty plea, the [district] court must determine that there is a factual basis for the plea.”

FED. R. CRIM. P. 11(b)(3). Rule 11 does not require that the district court determine whether a

jury would find the defendant guilty or that the defendant is guilty by a preponderance of the

evidence, but only that the court “assure itself simply that the conduct to which the defendant

admits is in fact an offense under the statutory provision under which he is pleading guilty.”

United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997). In assessing whether the

defendant’s conduct satisfies the elements of the charged offense, “[t]he court may rely on

defendant’s own admissions, information from the government, or other information appropriate

to the specific case.” United States v. Andrades, 169 F.3d 131, 136 (2d Cir. 1999). We review a

challenge to the sufficiency of a guilty plea where the defendant raised no objection below for

plain error. United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005). However, where “‘the

source of plain error is a supervening decision,’ the government, not the defendant, bears the

burden to demonstrate that the error . . . was harmless.” United States v. Henry, 325 F.3d 93,




                                                   3
100 (2d Cir. 2003) (omission in original) (footnote omitted) (quoting United States v. Outen, 286

F.3d 622, 639 (2d Cir. 2002)).2

       Here, we find no error, much less plain error. A conviction under the Hobbs Act requires

that the defendant’s actions “obstruct[], delay[], or affect[] commerce or the movement of any

article or commodity in commerce.” 18 U.S.C. § 1951(a). Subsequent to Parkes, this Court has

concluded that “[a] conspiracy that targets cocaine and heroin, and the proceeds from their sale,

undoubtedly meets” the Hobbs Act’s requirement of a de minimis effect on interstate commerce

because “[t]hese narcotics cannot be produced in New York, and thus necessarily travel in

interstate commerce.” Needham, 604 F.3d at 680. Defendant concedes that this is the case, but

he argues that the record does not establish what type of narcotic was involved in the instant

case; marijuana or LSD, for example, would not “undoubtedly” satisfy the Hobbs Act’s interstate

commerce element. However, contrary to Acevedo-Colon’s assertion, the record of the

allocution makes clear that Acevedo-Colon, in response to the court’s question, admitted that

cocaine was the object of the Hobbs Act robbery. Acevedo-Colon’s admission at allocution is

thus fatal to his appeal. We hereby conclude that, despite this Court’s abrogation of the

aforementioned presumption in Parkes, the district court complied with Rule 11’s requirement

that “the district court satisfy itself regarding the factual basis for [Acevedo-Colon’s] guilty

plea,” Andrades, 169 F.3d at 136.




       2
         The Government urges this Court to find that this “modified plain error” standard has
been abrogated by the Supreme Court’s decision in Johnson v. United States, 520 U.S. 461
(1997). However, like other panels, we need not address this issue because under either
approach, we would reach the same conclusion. See, e.g., United States v. Needham, 604 F.3d
673, 678 (2d Cir. 2010) (declining to resolve the issue).

                                                  4
       We have considered Acevedo-Colon’s remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.


                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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