   16-211 (L)
   United States v. Carr

                     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 ASUMMARY ORDER@).       A PARTY
CITING TO 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
   31st day of October, two thousand seventeen.

   PRESENT:
            DENNIS JACOBS,
            GERARD E. LYNCH,
                 Circuit Judges,
            PAUL A. CROTTY,*
                 District Judge.
   _____________________________________

   UNITED STATES OF AMERICA,
            Appellee,

              -v.-                                    16-211 (Lead)
                                                      16-378 (Con)
   DEREK CARR,
            Defendant-Appellant.
   ____________________________________

   FOR DEFENDANT-APPELLANT:      ROBIN CHRISTINE SMITH, New York,
                                 NY.


        *   Judge Paul A. Crotty, United States District Court for
   the Southern District of New York, sitting by designation.
FOR APPELLEE:                STEVEN D. CLYMER (Miroslav Lovric
                             on the brief), Assistant United
                             States Attorneys, for Grant C.
                             Jaquith, Acting United States
                             Attorney for the Northern District
                             of New York, Syracuse, NY.

     Appeal from a judgment of the United States District Court
for the Northern District of New York (McAvoy, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

     Derek Carr pleaded guilty to a two-count indictment
charging him with conspiracy to possess with intent to
distribute controlled substances (“Count One”) and possession
of a firearm in furtherance of a drug-trafficking crime (“Count
Two”). He now appeals the judgment of conviction entered by
the United States District Court for the Northern District of
New York (McAvoy, J.), arguing that the court failed to ensure
both that he understood the charge in Count One and that there
was a sufficient factual basis for his plea as to either count.
See Fed. R. Crim. P. 11(b). Because Carr did not raise these
challenges below, our review is for plain error.1    See United
States v. Torrellas, 455 F.3d 96, 103 (2d Cir. 2006). We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     1.   Carr argues that the district court committed Rule 11
error by failing to ensure that he understood the elements of
the conspiracy charge to which he pleaded guilty. See Fed. R.
Crim. P. 11(b)(1)(G) (before accepting a guilty plea, a court
must “inform the defendant of, and determine that the defendant
understands, . . . the nature of each charge to which the
defendant is pleading”). Specifically, he argues that he was
not adequately apprised of the fact that a conspiracy requires
a “[knowing] agreement between two or more persons to commit
an offense.” United States v. Blackwell, 199 F.3d 623, 626 (2d
Cir. 1999) (internal quotation marks and citation omitted).
This assertion is belied by the record.
1
 We need not address the government’s argument that Carr’s
appeal is barred by the waiver-of-appeal provision in his plea
agreement because Carr’s claims fail easily on the merits.
     “A district court is not required to follow any particular
formula in determining that the defendant understands the
nature of the charge to which he is pleading guilty.” United
States v. Andrades, 169 F.3d 131, 135 (2d Cir. 1999). A court
can ensure that Rule 11(b)(1)(G) is satisfied in any one of
several ways.      See Frederick v. Warden, Lewisburg Corr.
Facility, 308 F.3d 192, 197 (2d Cir. 2002). For example, the
court may “describ[e] the elements of the offense in [its] own
words,” or provide that same information “by reading the
indictment to the defendant where the pertinent count spells
out the elements of the offense and the circumstances indicate
that this will be sufficient.” United States v. Maher, 108 F.3d
1513, 1521 (2d Cir. 1997). The district court here did both,
thereby satisfying Rule 11(b)(1)(G).

     Carr’s plea agreement, which, like the one in Frederick,
“contained a clear description of the charged conduct,”
reinforces the determination that Carr understood the
conspiracy charge against him. 308 F.3d at 197. The plea
agreement clearly laid out the elements of the conspiracy
charge, specifically stating that “[t]he defendant understands
that the following are the elements of the offense of Count
[One],” before listing the elements in sequence. App’x at 43.
The elements listed included, inter alia, “that the conspiracy
[or] agreement . . . was . . . entered into by two or more
persons”; “[that] the defendant knew the purpose of the
agreement, and then deliberately joined [it]”; and “that the
conspiracy involved the possession with intent to distribute
. . . one or more controlled substances [as part of a] jointly
undertaken criminal activity”. Id. at 43-44.

     At the change of plea hearing, the court confirmed Carr’s
comprehension of that information.     In response to direct
questioning from the court, Carr stated that he had read the
agreement, that his attorney had explained it to him, that he
had understood it, and that he had signed it voluntarily. See
id. at 35. For these reasons, there was no error.




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     2.   Carr argues next that the district court’s entry of
judgment against him amounted to Rule 11 error because there
was an insufficient factual basis for his guilty plea on either
count.    See Fed. R. Crim. P. 11(b)(3) (“Before entering
judgment on a guilty plea, the court must determine that there
is a factual basis for the plea.”).

     Rule 11(b)(3) is “designed to ‘protect a defendant who is
. . . pleading voluntarily . . . without realizing that his
conduct does not actually fall within the charge.’” United
States v. Smith, 160 F.3d 117, 121 (2d Cir. 1998) (quoting
McCarthy v. United States, 394 U.S. 459, 467 (1969)). It does
“not require[] [a court] ‘to weigh evidence to assess whether
it is [] more likely than not that the defendant is guilty.’”
United States v. Robinson, 799 F.3d 196, 199 (2d Cir. 2015)
(quoting Maher, 108 F.3d at 1524). It requires simply “that
the court ‘assure itself [] 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. Garcia, 587 F.3d 509, 514 (2d Cir. 2009) (quoting Maher, 108
F.3d at 1524). The court can find the factual basis for the
plea anywhere in the record, including in “the presentence
report[] ‘or [any other source] appropriate in a specific
case.’” Smith, 160 F.3d at 121 (quoting Maher, 108 F.3d at
1524).

     The facts acknowledged by Carr in his plea agreement were
sufficient to establish that his conduct fell within the scope
of the conspiracy charge in Count One. In his plea agreement,
Carr admitted to conspiring with at least thirteen
specifically-named individuals to distribute drugs in the
greater Binghamton, New York region. He admitted to acquiring
drugs from those individuals and to later distributing them
around Binghamton. And he admitted that, as part of a “jointly
undertaken criminal activity,” he and those individuals had
distributed 300 grams or more of crack cocaine, 5 kilograms or
more of cocaine, and 120 grams or more of heroin. App’x at 45;
see United States v. Dupree, 870 F.3d 62, 78 (2d Cir. 2017) (a
defendant is guilty of a drug conspiracy if he “knew the
conspiracy existed, intentionally joined it with specific
intent to commit [its] object[,] . . . and knew or could

                               4
reasonably foresee     [the]    quantity   and   type   of   drugs
[involved]”).

     As to the firearms charge in Count Two--which requires
proof that the defendant both committed the drug offense in
Count One and used a firearm in furtherance of that offense,
see United States v. Rodriguez-Moreno, 526 U.S. 275, 280
(1999)--the plea agreement provided specifically that Carr had
“carried and possessed a firearm” in furtherance of the drug
conspiracy described above. App’x at 45.

     Because those facts established a sufficient factual basis
for Carr’s plea under Rule 11(b)(3), his claim of error fails.

     We have considered Carr’s remaining arguments and find them
to be without merit. Finding no error, let alone the plain
error Carr must demonstrate to prevail on this appeal, we AFFIRM
the judgment of the district court.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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