11-746-cr
United States v. Preston

                   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, 500 Pearl Street, in the City of New
York, on the 1st day of October, two thousand twelve.

PRESENT:    CHESTER J. STRAUB,
            ROBERT D. SACK,
            DENNY CHIN,
                            Circuit Judges.

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UNITED STATES OF AMERICA,
          Appellee,

            -v.-                                      11-746-cr

MARSHAY J. PRESTON,
          Defendant-Appellant.

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FOR APPELLEE:                       MONICA J. RICHARDS (Stephan J.
                                    Baczynski, on the brief), Assistant
                                    United States Attorneys, for
                                    William J. Hochul, Jr., United
                                    States Attorney for the Western
                                    District of New York, Buffalo, New
                                    York.


FOR DEFENDANT-APPELLANT:            NICHOLAS J. PINTO, ESQ., New York,
                                    New York.
            Appeal from a judgment of the United States District

Court for the Western District of New York (Larimer, J.).
            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

            Defendant-Appellant Marshay J. Preston appeals his

conviction entered on February 22, 2011 in the United States

District Court for the Western District of New York (Larimer, J.)
for:    (1) possession of cocaine base with intent to distribute,

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851

("Count One"); (2) possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)

("Count Two"); (3) possession of a firearm and ammunition as a

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

("Count Three"); and (4) possession of a firearm as a felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ("Count Four").

On October 29, 2009, Preston pleaded guilty to Counts Three and

Four, and entered a plea of nolo contendere to Counts One and

Two.    The district court sentenced Preston principally to a term
of imprisonment of 204 months, consisting of 144 months on Count

One, 60 months on Count Two (consecutively to the sentence

imposed on Count One), and 120 months on each of Counts Three and

Four (concurrently with the sentences imposed on Counts One and

Two).

            On appeal, Preston argues that: (1) the district court

accepted his plea to Count Two without establishing a sufficient

factual basis; (2) his plea was not entered knowingly; and (3)

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the district court denied his request for a full hearing to

determine certain facts relevant to sentencing.   We assume the

parties' familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

1.   Factual Basis for Count Two

          Preston argues that his conviction on Count Two should

be vacated because the district court lacked a sufficient factual

basis to conclude that the charged firearms were possessed in

furtherance of a drug trafficking crime.   See 18 U.S.C.

§ 924(c)(1).   Preston contends that the district court was

required to find a factual basis for his plea to Count Two

because he intended to enter a guilty plea pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970), rather than a plea of

nolo contendere.   See Alford, 400 U.S. at 37-38 (holding that

court may accept guilty plea despite defendant's protestations of

factual innocence where court finds factual basis for plea and

plea was voluntary and intelligent).

          Where, as here, a defendant raises on appeal a claim of

error pursuant to Rule 11 of the Federal Rules of Criminal

Procedure that he did not raise in the district court, we review

for plain error.   United States v. Torrellas, 455 F.3d 96, 103
(2d Cir. 2006).

          Rule 11(b)(3) requires a district court, prior to

entering judgment on a plea, to "determine that there is a

factual basis for the plea."   Fed. R. Crim. P. 11(b)(3).     Rule 11

does not require the district court to determine whether the


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defendant is guilty by a preponderance of the evidence or to

predict whether a jury would find him guilty beyond a reasonable

doubt.   United States v. Maher, 108 F.3d 1513, 1524 (2d Cir.

1997).   Rather, the court must "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."      Id.

In establishing the factual basis for a plea, "[a] 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).

              Assuming arguendo that the district court was

required to establish a factual basis for Preston's plea to Count

Two, we conclude that the record provides an adequate factual

basis for his conviction for possession of a firearm in

furtherance of a narcotics trafficking crime.    A person may be

convicted for "mere possession of a firearm" pursuant to 18

U.S.C. § 924(c)(1)(A) so long as "that possession is 'in

furtherance of' a drug trafficking crime."    United States v.
Lewter, 402 F.3d 319, 321 (2d Cir. 2005).    To satisfy the "in

furtherance" element, the Government must demonstrate a "specific

'nexus' between the charged firearm and the charged drug selling

operation."    United States v. Snow, 462 F.3d 55, 62 (2d Cir.

2006) (quoting United States v. Finley, 245 F.3d 199, 203 (2d

Cir. 2001)).   Whether such a nexus exists is a fact-intensive

inquiry, and courts look to many factors, including but not

limited to "the type of drug activity that is being conducted,


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accessibility of the firearm, the type of the weapon, whether the

weapon is stolen, the status of the possession (legitimate or

illegal), whether the gun is loaded, proximity to drugs or drug

profits, and the time and circumstances under which the gun is

found."   Id. at 62 n.6 (quoting United States v. Ceballos-Torres,

218 F.3d 409, 414-15 (5th Cir. 2000)).

          At Preston's plea hearing, the Government proffered

that a search of Preston's residence yielded four guns (three of

them loaded, one with an obliterated serial number), numerous

rounds of ammunition, 0.99 grams of cocaine, two digital scales,

unused ziplock bags of the kind used to distribute drugs, and a

surveillance camera that streamed live video of the front of the

residence.    The Government also submitted a memorandum

referencing Preston's written statement that the cocaine and

three of the four recovered guns belonged to him, that he had

tried to cook the cocaine into cocaine base, and that he sold

crack at a rate of $500 per week.       Even if, as Preston told

police, he did not sell drugs from his house or have firearms

present during drug transactions, "[p]ossession of a firearm to

defend a drug stash clearly furthers the crime of possession with

intent to distribute the contents of that stash."       Lewter, 402
F.3d at 322.

             Accordingly, we are satisfied that there was an

adequate factual basis for Preston's plea to Count Two, and the

district court's decision to accept Preston's plea was not

plainly or otherwise erroneous.

                                  -5-
2.   Knowing Plea

            Preston next argues that his plea was not knowing

because he mistakenly believed he had preserved his right to

appeal the district court's earlier denial of a motion to

suppress Preston's post-arrest statement and the district court

made no effort to correct that misunderstanding.

            As noted above, because Preston did not raise this

objection before the district court, we review for plain error.

See Torrellas, 455 F.3d at 103.    We consider the entire record

when determining whether a Rule 11 violation occurred and in

assessing the effect of a likely error.    Id.
            Contrary to Preston's contention, the record contains

no evidence that he believed or was advised that he could

preserve his right to appeal the denial of his motion to

suppress.    Although defense counsel stated that the court could

admit Preston's post-arrest statement "for plea purposes" but

that Preston was "not necessarily adopting either the

voluntariness or the reliability of the statement by virtue of
its admission at these proceedings," counsel's statement, without

more, is insufficient to show that Preston believed he had

preserved his right to appeal the district court's earlier

decision.    It is well settled that a defendant's plea of guilty

waives all non-jurisdictional challenges unless the defendant

reserves such issues for appeal in writing with the consent of

the court and the Government.    Hayle v. United States, 815 F.2d

879, 881 (2d Cir. 1987); see Fed. R. Crim. P. 11(a)(2) ("With the


                                  -6-
consent of the court and the government, a defendant may enter a

conditional plea of guilty or nolo contendere, reserving in

writing the right to have an appellate court review an adverse

determination of a specified pretrial motion.").    Defense counsel

did not request a conditional plea, nor did he seek the

Government's or the court's consent to a conditional plea.

            Further, during the plea colloquy, the district court

advised Preston that his plea would waive many of his rights but

would not preclude him from appealing his sentence on the grounds

that it was not properly considered or that it was in violation

of 18 U.S.C. § 3553(a) or the Sentencing Guidelines.    Preston

also confirmed his understanding that he would not be able to

withdraw his guilty plea if he was unhappy with the sentence or

had second thoughts.   The district court was not required to

specifically inquire whether Preston understood that a guilty

plea would waive his right to appeal the earlier denial of his

motion to suppress.    See United States v. Broce, 488 U.S. 563,

573 (1989) (stating that "conscious waiver is [not] necessary

with respect to each potential defense relinquished by a plea of

guilty").

            Under these circumstances and based on the entire

record, we are satisfied that Preston's plea was knowing and

voluntary.

3.   Procedural Reasonableness
            Finally, Preston contends that the district court

abused its discretion by denying his request for a full


                                 -7-
evidentiary hearing as to a recorded conversation that the court

considered relevant to sentencing.

            Sentencing courts have broad discretion to consider

information relevant to sentencing.    United States v. Watts, 519

U.S. 148, 151 (1997) (per curiam); see also 18 U.S.C. § 3661 ("No

limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.").

A district court is not required to hold a full-blown evidentiary

hearing to address sentencing disputes.    United States v. Slevin,
106 F.3d 1086, 1091 (2d Cir. 1996).    Rather, the court must

simply "afford the defendant some opportunity to rebut the

Government's allegations."   Id. (internal quotation marks

omitted).   We review the district court's choice of procedure to

decide sentencing disputes for abuse of discretion.    Id.

            Here, the record reflects that the district court

afforded Preston an opportunity to rebut the Government's

allegations by contesting the reliability of the recording and

placing it in context.    Preston's counsel challenged the

reliability of the recorded conversation both in a written

sentencing submission and at the sentencing hearing.    In

addition, Preston addressed the recording during his own remarks

at the sentencing hearing.    The court was not required to conduct

a full-blown hearing to allow Preston to rebut the Government's

allegations.    Accordingly, we find that the district court did

                                 -8-
not abuse its discretion when it denied Preston's request for a

hearing.

                          *      *      *

           We have considered Preston's remaining arguments and

find them to be without merit.       Accordingly, we hereby AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 CATHERINE O'HAGAN WOLFE, CLERK




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