12-1560-cr
United States v. Hwang (Ng)


                              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 4th day of March, two thousand fourteen.

PRESENT:
                JOSÉ A. CABRANES,
                DEBRA ANN LIVINGSTON,
                SUSAN L. CARNEY,
                             Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                Appellee,
                         v.                                     No. 12-1560-cr

DAVID HWANG, AKA SUNKI HWANG, BENNY
AUYEUNG, JOSHUA BANNER, AKA POPS, AKA
JOSHUA BENNER,

                Defendants,

THOMAS NG, AKA TOMMY, AKA EDDIE, E,

            Defendant-Appellant.
_____________________________________

FOR APPELLEE:                                            Susan Corkery, Jacquelyn M. Kasulis,
                                                         Assistant United States Attorneys, for
                                                         Loretta E. Lynch, United States

                                               1
                                                                   Attorney, Eastern District of New
                                                                   York.


FOR DEFENDANT-APPELLANT:                                           Elizabeth Macedonio, Elizabeth E.
                                                                   Macedonio P.C., Bayside, NY.


        Appeal from an April 17, 2012 judgment of the United States District Court for the Eastern
District of New York (Sterling Johnson, Jr., Judge).

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

         Thomas Ng appeals the final judgment of the District Court, convicting him, on his plea of
guilty, of two counts of Hobbs Act robbery conspiracy in violation of 18 U.S.C. § 1951(a) and one
count of unlawful use and brandishing of a firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). Ng was sentenced, principally, to concurrent terms of
imprisonment of 133 months on the robbery conspiracy counts and a consecutive term of
imprisonment of 84 months on the firearm count. Ng now seeks to withdraw his guilty plea on the
grounds that it was not knowingly and voluntarily entered. We assume the parties’ familiarity with
the underlying facts and procedural history of this case.
         Ng claims that his conviction should be vacated because the District Court did not
adequately comply with the requirements set forth in Rule 11 of the Federal Rules of Criminal
Procedure. In particular, he asserts that his plea was not knowing or voluntary because, although he
was advised by the District Court of several rights he was relinquishing by pleading guilty, including
the right to a speedy and public trial and the right to call witnesses in his defense, he was not
specifically advised of the following rights: (1) right to a trial by jury; (2) right to be represented by
counsel and to have counsel appointed for him, if necessary; (3) right to be protected from self-
incrimination; and (4) right to compel the attendance of witnesses. Additionally, Ng claims that the
District Court erred in failing to advise him of its obligation to calculate the applicable Federal
Sentencing Guidelines range and to consider that range in conjunction with the factors set forth in
18 U.S.C. § 3553(a).1
          Ng raised no objections during the plea hearing, and so his claims are reviewed for plain
error. The Supreme Court has instructed that a finding of “plain error” requires that

            (1) there is an error; (2) the error is clear or obvious, rather than subject to
            reasonable dispute; (3) the error affected the appellant’s substantial rights, which


        1Ng does not argue that his sentence was substantively or procedurally unreasonable; rather his
argument about sentencing is part of his overall Rule 11 claim.
                                                     2
         in the ordinary case means it affected the outcome of the district court
         proceedings; and (4) the error seriously affects the fairness, integrity or public
         reputation of judicial proceedings.
United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) (quoting United States v. Marcus, 560 U.S. 258
(2010); see United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013) (same). In other words, “[t]o be
plain, an error of the district court must be obviously wrong in light of existing law.” United States v.
Youngs, 687 F.3d 56, 59 (2d Cir. 2012) (internal quotation marks omitted).
        In the Rule 11 context, the Supreme Court has held that “a defendant who seeks reversal of
his conviction after a guilty plea, on the ground that the district court committed plain error under
Rule 11, must show a reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In determining the effect of the Rule
11 violation, we are not confined to the plea colloquy itself but may consult the entire record. See
United States v. Vonn, 535 U.S. 55, 74-76 (2002).
        Based on our review of the record, we hold that Ng has failed to show that if not for the
District Court’s failure to instruct him on the four rights listed above and its obligation with regard
to the Sentencing Guidelines, he would not have pleaded guilty. We conclude that Ng’s plea was
knowingly and voluntarily entered.

                                           CONCLUSION

       We have considered all of Ng’s arguments on appeal and find them to be without merit.
Accordingly, we AFFIRM the April 12, 2012 judgment of the District Court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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